Judge Walter P. Schwarm, Case 30-2021-01199107 2022-10-18 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2021-01199107, Date: 2022-10-18 Tentative Ruling

Plaintiff’s (Marie Keel) Motion to Set Aside Voluntary Dismissal Without Prejudice Filed on 3/30/22 (Motion), filed on 6-6-22 under ROA No. 126, is GRANTED.

Code of Civil Procedure section 473, subdivision (b), states, in part, “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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken . . . Notwithstanding any other requirements of this section, 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. . . .”

Ron Burns Constructions Co., Inc. v. Moore (2010) 184 Cal.App.4th 1406, 1413 (disapproved on other grounds in Even Zohar Constr. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 844) states, “ ‘[T]he policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary. [Citations.]’ [Citation.] Hence, ‘ “ ‘[t]he provisions of section 473 of the Code of Civil Procedure are to be liberally construed. . . .’ [Citation.]” [Citation.] . . . “[A]ny doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” [Citation.]’ (Maynard v. Brandon (2005) 36 Cal.4th 364, 371–372, 30 Cal.Rptr.3d 558, 114 P.3d 795.) ‘Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations “very slight evidence will be required to justify a court in setting aside the default.” [Citations.]’ [Citation.]” [¶] “ ‘A motion seeking such relief lies within the sound discretion of the trial court, and the trial court's decision will not be overturned absent an abuse of discretion. [Citations.] However, the trial court's discretion is not unlimited and must be “ ‘exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ ” [Citations.]’ (Elston v. City of Turlock, supra, 38 Cal.3d at p. 233, 211 Cal.Rptr. 416, 695 P.2d 713.) ‘[A] trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. [Citations.]’ [Citation.]”

Evan Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838-839 (Zohar), explains, “Section 473(b) contains two distinct provisions for relief from default. The first provision, presented here only for context, is discretionary and broad in scope: ‘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.’ (§ 473(b).) The second provision is mandatory, at least for purposes of section 473, and narrowly covers only default judgments and defaults that will result in the entry of judgments. This provision, the one here at issue, declares as follows: ‘Notwithstanding any other requirements of this section, 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.’ (§ 473(b).)”

Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 (Jay), states, “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions, which is not surprising, given that it is a common evidentiary motion. ‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case . . .’ and if permitted, the other party should be given the opportunity to respond. [Citations.] The same rule has been noted in other contexts as well. [¶] This rule is based on the same solid logic applied in the appellate courts, specifically, that ‘[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.’ [Citations.] [¶] To the extent defendants argue they had the right to file any reply declarations at all, they are not wrong. Such declarations, however, should not have addressed the substantive issues in the first instance but only filled gaps in the evidence created by the limited partners' opposition.”

Based on Jay, the court OVERRULES Defendants’ (Merritt McKeon and Eric Turkel) Objection to Late New Evidence Submitted in Support of Plaintiff’s Motion to Set Aside Dismissal Without Prejudice filed on 10-3-22 under ROA No. 145. The declarations of Behrouz Shafie and Sharon Sotva, filed on 10-7-22 under ROA No. 147, fill in gaps in the evidence raised in Defendants’ Opposition to Plaintiff’s Motion to Set Aside Dismissal Without Prejudice (Opposition) filed on 10-3-22 under ROA No. 145. (Opposition; 4:7-10.)

Here, Plaintiff’s counsel, Behrouz Shafie, has submitted the following evidence: (10 “On March 30, 2022, I signed a request for dismissal of entire action. I made a mistake when I signed the request for dismissal. . . .” (6-6-22 Shafie Decl., ¶ 3.); (2) “I instructed my paralegal to dismiss only the cause of negligence for professional negligence, and when Mr. Shafie signed the Request for dismissal, I did not recognize that the wrong box was checked on the form.” (6-6-22 Shafie Decl., ¶ 4.); (3) “I generally, go to my office in the morning between 6:00 a.m. to 7:00 a.m. After I left various instructions for my paralegal including the attached instructions to my paralegal Sharon Sotva. As I recall, I said that I didn’t feel good and I went home shortly thereafter.” (10-7-22 Shafie Decl., ¶ 3.); (4) Sometimes [sic] in the afternoon of March 20, 2022, Ms. Sotva came to my house, which is less than five minutes from my office, and asked me to sign various documents including the request for Dismissal related to this matter. Unfortunately, I did not realize that the Request for Dismissal was not for the cause of action for Professional Negligence only.” (10-7-22 Shafie Decl., ¶ 4.); (5) “I did prepare a Request for Dismissal of the Keel v. McKeon case. However, when I looked at Mr. Shafie’s note to me I did not realize that it was the dismissal of the cause of action for Professional Negligence only.” (10-7-22 Sotva Decl., ¶ 4.)

This evidence is sufficient to show excusable neglect or mistake.

Based on the above, the court GRANTS Plaintiff’s (Marie Keel) Motion to Set Aside Voluntary Dismissal Without Prejudice Filed on 3/30/22, filed on 6-6-22 under ROA No. 126. The court vacates the dismissal entered on 3-30-22 under ROA No. 98. The court also order Plaintiff to pay Defendants $1,000.00 as a penalty pursuant to Code of Civil Procedure section 473, subdivision (c)(1)(A).

Plaintiff to give notice.