Judge: Upinder S. Kalra, Case: BC720697, Date: 2022-12-19 Tentative Ruling

Case Number: BC720697    Hearing Date: December 19, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   December 19, 2022                            

CASE NAME:           New Look Skin Center v. Hulnara Vartanian

CASE NO.:                BC720697

MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY: Plaintiff New Look Skin Center, Inc.

RESPONDING PARTY(S): Defendant Hulnara Vartanian

REQUESTED RELIEF:

1.      An order setting aside/vacating the dismissal

TENTATIVE RULING:

1.      Motion to Set Aside/Vacate Dismissal is GRANTED

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

LEGAL STANDARD:

Although a trial court has discretion to vacate the entry of a default or subsequent judgment, this discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.”(Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) Moving parties have the initial burden to prove excusable neglect by a preponderance of competent evidence.(Kendall v. Barker (1988) 197 Cal.App.3d 619, 624.)

Code of Civil Procedure section 473, subdivision (b)

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect…  [The application] shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (CCP § 473(b).)

Equitable relief

Additionally, relief from the dismissal is available on equitable grounds based upon extrinsic mistake.  In Aldrich v. San Fernando Valley Lumber Co. (1985)170 Cal. App. 3d 725, 737, the court defined the terms “extrinsic” and “mistake” broadly: “mistake” included “any set of extrinsic circumstances which deprive a party of a fair adversary hearing;” and, “extrinsic” encompassed any “matters outside of the pleadings.” (Ibid.) 

ANALYSIS:

            Plaintiff moves to vacate the dismissal that was entered on March 14, 2022. Plaintiff argues that relief is warranted under CCP § 473(b) based on counsel’s mistake, inadvertence, and excusable neglect. Here, at a Final Status Conference hearing on October 29, 2021, the Court continued the trial date until December 20, 2021. However, Plaintiff’s counsel mistakenly believed that the date was for December 20, 2022, and therefore mistakenly calendared the trial for December 2022.

            Plaintiff argues that under the mandatory provision of CCP 473(b), the Court should vacate the dismissal as the it was counsel’s mistake, which resulted in the dismissal of the matter. Additionally, Plaintiff also argues that under the discretionary provision of CCP § 473(b), the court can set aside a dismissal “upon any terms as may be just.” Plaintiff not only mistakenly calendared the trial for December 2022, not 2021, but also did not receive the notices, as the address was for a previous residence, not the office address, which is “the sole address provided in all pleadings and papers filed by Kerendian & Associates, Inc., in this and all other actions and matters.” (Motion 15: 5-10.)

Defendant argues that the matter should remain dismissed because under CCP 583.420(a)(2)(A), the court can dismiss a matter if not brought to trial within three years. Even if the dismissal was vacated, a new trial would place it outside of the five-year time frame as mandated under CCP §§ 583.320-583.360. Moreover, Defendant argues that Plaintiff did have notice of this matter. The exhibits attached are of minute orders, where Plaintiff as well as Defendant waived notice. Even more, Plaintiff does not account for the fact that Court 51’s Courtroom Assistant emailed both counsel on December 14, 2021, at the same email address Plaintiff’s counsel used in May 2021, that the trial needed to be continued. Additionally, Plaintiff’s counsel failed to apprise to court of any address changes. Lastly, Plaintiff did not act diligently, as Plaintiff’s counsel indicated that the dismissal was not discovered until after a quarterly review in September 2022. Yet, a quarterly review implies that there were other times prior to September 2022 where Plaintiff’s counsel would have discovered the trial continuance. (Opp. 7: 22 – 8: 9.) Lastly, Defendant has suffered prejudice as the witness set to testify can no longer be located.

1.       Code of Civil Procedure section 473, subdivision (b)

[T]he purpose of the mandatory relief provision under section 473, subdivision (b) is achieved by focusing on who is to blame, not why. Indeed, in many cases, the reasons for the attorney's mistake, inadvertence, surprise, or neglect will be irrelevant; that is because, as noted above, the mandatory relief provision entitles a party to relief even when his or her attorney's error is inexcusable.” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 439). Here, the Declaration of Edrin Shamtob indicates that it was through their mistake and oversight that no appearance was made at the March 2022 trial. (Dec. Shamtob ¶ 16, 26-33.) “Unlike the discretionary ground for relief, a motion based on attorney fault need not show diligence in seeking relief. The motion is timely if filed within six months of the entry of the default judgment or dismissal.” (Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1147.) Here, the dismissal was entered on March 14, 2022, and the current motion was filed on September 8, 2022. Thus, this matter was timely filed and is entitled to relief under this subdivision.

2.      Extrinsic Fraud or Mistake

There does appear to be another independent basis for relief.  ““Extrinsic fraud occurs when a party is deprived of his opportunity to present his claim or defense to the court, where he was kept in ignorance or in some other manner fraudulently prevented from fully participating in the proceeding. [Citation.] Examples of extrinsic fraud are concealment of the existence of a community property asset, failure to give notice of the action to the other party, convincing the other party not to obtain counsel because the matter will not proceed (and it does proceed). [Citation.]” (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 315.)

It appears to the Court that a series of extrinsic mistakes caused this action to be dismissed improvidently. While the parties waived notice on October 21, 2021, when the trial was scheduled for December 20, 2021, there was no such waiver of notice when, on December 14, 2021, the Court continued the trial, on its own motion, to March 14, 2022, at 9:30 AM. Instead, notice was provided by the Clerk. Proof of mailing indicates the notice was mailed to Plaintiff’s counsel to the Public Law Center on Yarmouth Avenue in Encino. The complaint, however, indicates Plaintiff’s counsel’s law firm had an address on Wilshire Blvd. in Los Angeles. All subsequent filings list the same law firm and address.  It is likely that the clerk obtained the Yarmouth address from the state bar web site by checking counsel’s address.  In any event, when the Court dismissed the matter on March 14, 2022, it first needed to make a finding that Plaintiff was properly noticed of the date of the trial.  The Court did make such a finding. However, there was no evidence that Plaintiff was given written notice of the new trial date at the address provided on the complaint and all subsequent filings with the court. In sum, the Court’s finding that Plaintiff was noticed of the trial date was error based upon extrinsic mistake.  Accordingly, the Court’s order dismissing the matter was also in error. In sum, it would be unjust to allow such a dismissal founded on clerical extrinsic mistake, committed by the court, to remain. Accordingly, this court exercises its inherent equitable powers to set aside the Dismissal.

Therefore, the Motion to Set Aside/Vacate Dismissal is GRANTED.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

            Motion to Set Aside/Vacate Dismissal is GRANTED.  The Court declines to award any fees or costs in light of the role the Court played in the confusion.

Moving party is to give notice. The Court will conduct a trial setting conference following the hearing on this motion.

IT IS SO ORDERED.

Dated:             December 19, 2022                 __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court