Judge: Wesley L. Hsu, Case: 23PSCV00130, Date: 2023-05-15 Tentative Ruling
Case Number: 23PSCV00130 Hearing Date: May 15, 2023 Dept: L
Plaintiff R.C.
Henderson Trust, LLC’s Motion to Set Aside Dismissal of the Case is GRANTED.
Background
Plaintiff R.C. Henderson Trust, LLC (“Plaintiff”) alleges as follows:
On May 21, 2015,
Plaintiff, through its predecessor in interest, and Adam Selayandia
(“Selayandia”) entered into a purchase agreement (“Agreement #1”), whereby Plaintiff
purchased from Selayandia his right to receive certain periodic annuity
payments, including 10 annual payments of $2,475.72 beginning on April 30, 2016
and ending on April 30, 2025 (the “Agt. #1 Payments”). Per the Agreement,
Selayandia was to deliver to Plaintiff a letter of instruction, addressed to
the annuity company, New York Life Insurance Company (“NY Life”), directing
that the Agt. #1 Payments be sent to Plaintiff at an address designated by
Plaintiff. On November 23, 2015, Plaintiff, through its predecessor in
interest, and Selayandia entered into a separate Purchase Agreement (“Agreement
#2”) whereby Plaintiff purchased from Selayandia his right to receive 17 annual
payments of $2,475.72 beginning on April 30, 2026 and ending on April 30, 2042.
Selayandia agreed in writing that the Agt. #2 Payments should be sent by NY
Life to Plaintiff. Plaintiff received payments due in April 2016 through April
2021, but did not receive the payment due in April 2022. Plaintiff believes
Selayandia has redirected the monies.
“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. . .” (Code Civ. Proc., § 473, subd. (b).)
Discussion
Plaintiff moves the court for an order, pursuant to Code of Civil Procedure § 473, subdivision (b), setting aside the dismissal of this case and reinstating it to the trial calendar.
Plaintiff’s counsel James R. Felton (“Felton”) represents as follows:
Shortly
after filing the complaint, he communicated with NY Life’s counsel. (Felton
Decl., ¶ 5). NY Life requested that it be dismissed via a stipulation because,
as Annuity Obligor, it was essentially a third-party escrow. (Id.) He
agreed to dismiss the matter entirely, on the mistaken belief that NY Life
would send all future payments to Plaintiff. (Id.) On March 28, 2023, a
dismissal was filed with the court. (Id., ¶ 6). After the dismissal was
filed, NY Life’s counsel contacted him and indicated that NY Life did not
believe that the matter had been resolved and instead were waiting for the
court to enter judgment, giving it direction. (Id.)
The court determines that Felton’s declaration reflects that the dismissal was entered due to Felton’s excusable neglect. The unopposed motion is granted, and the case is ordered restored to the civil active list.