Judge: Virginia Keeny, Case: 19VECV01803, Date: 2022-08-31 Tentative Ruling

Case Number: 19VECV01803    Hearing Date: August 31, 2022    Dept: W

osvaldo martignoni v. Arash Majlessi et al

MOTION TO SET ASIDE/vacate dismissal AND MOTION FOR ATTORNEY FEES

Date of Hearing:          August 31, 2022                                  Trial Date:       None set.  

Department:               W                                                         Case No.:         19VECV01803 

Moving Party: Plaintiffs Osvaldo Martignoni and Claudia Martignoni.  

Responding Party: Defendant Gloria Center LLC   

BACKGROUND 

This is a contractual fraud action. On December 19, 2019, Plaintiffs Osvaldo Martignoni and Claudia Martignoni (“Plaintiffs”) filed this action. The operative pleading is the Fourth Amended Complaint, which was filed on February 9, 2022, against Defendants Arash Majlessi, Majlessi Corporation, Gloria Center LLC, Kamran Hekmat, United Escrow Co., John C. Lee, and Ian Bhak for (1) rescission, (2) fraud, (3) breach of contract, (4) rescission, (5) breach of duty and gross negligence, (6) breach of duty and gross negligence, (7) fraud, and (8) declaratory relief.

On April 18, 2022, the Court sustained, without leave to amend, Defendants Kamran Hekmat and Gloria Center LLC’s (“Hekmat Defendants”) demurrer to the fourth and seventh causes of action and dismissed Defendants with prejudice. Plaintiffs filed an initial Motion to Set Aside the Dismissal, and on June 13, 2022, the Court denied that motion.

Plaintiffs now move the Court a second time to set aside the dismissal.

 [TENTATIVE] RULING 

1.                Plaintiffs’ Motion to Set Aside/Vacate Dismissal is GRANTED.  

LEGAL STANDARD

CCP section 473(b) provides in part: “the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”

ANALYSIS

Procedural Violations

Like Plaintiffs’ first Motion to Set Aside Dismissal, Plaintiffs’ instant Motion fails to comply with California Rules of Court rule 3.1110(a) because Plaintiffs fail to state the grounds for the Motion in the opening paragraph of their notice. Also, like their first attempt, the instant memorandum sets out the black letter law of Code of Civil Procedure section 473, but Plaintiffs again fail to comply with California Rules of Court rule 3.1113 because Plaintiffs do not provide a statement of facts, and arguments, analysis, or a discussion of the application of section 473 to the instant issue. Notwithstanding the procedural deficiencies with Plaintiffs’ Motion, Plaintiffs’ counsel’s declaration generally states that the dismissal of Defendants was due to counsel’s mistake and thus it appears that Plaintiffs are moving to set aside the dismissal under section 473(b).

Accordingly, the Court will consider the merits of the motion

Discussion

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part…any party affected by the order may…make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Pro. § 1008(a).) “Code of Civil Procedure section 1008 imposes special requirements on renewed applications for orders a court has previously refused. A party filing a renewed application must, among other things, submit an affidavit showing what ‘new or different facts, circumstances, or law are claimed’ to justify the renewed application, and show diligence with a satisfactory explanation for not presenting the new or different information earlier. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833 (citing (California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 45–46) (emphasis added).)

In its first Motion to Set Aside the Dismissal, Plaintiffs’ counsel claimed that she did not receive Defendants’ demurrer and did not expressly agree to receive service of the demurrer by email. (White Decl., April 30, 2022, ¶¶ 2-5.) She did not claim attorney mistake or inadvertence, but rather that the defendants had done something wrong.   Now, in its instant Motion to Set Aside the Dismissal, Plaintiffs’ counsel withdraws those claims and admits that she either “forgot to calendar it or did not see it.” (White Decl., July 6, 2022, ¶ 5.) The only additional explanation given by Plaintiffs’ counsel is a general claim that “it was attorney mistake.” (Ibid.) At no point do Plaintiffs provide an explanation for why this new information was not presented earlier.

Although plaintiffs’ counsel’s declaration is extremely thin, the court concludes that it is not in the interest of justice to dismiss the plaintiffs’ case due to the error of counsel in failing to oppose the demurrer to the Fourth Amended Complaint and her failure to appear at the hearing. 

CONCLUSION

Plaintiffs’ Motion to Set Aside the Dismissal of Defendants Kamran Hekmat and Gloria Center LLC is GRANTED.  The court will vacate the dismissal order and set the demurrer to the Fourth Amended Complaint for further hearing. 

Because the motion to set aside the dismissal is granted, the motion for attorney fees is moot.