Judge: William A. Crowfoot, Case: 20STCV10700, Date: 2022-09-26 Tentative Ruling

Case Number: 20STCV10700    Hearing Date: September 26, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On March 16 2020, plaintiff Lilian Hernandez (“Plaintiff”)filed this action against defendant Campus Plaza, LLC (“Defendant”).  Plaintiff alleges she sustained injuries on Defendant’s property on April 19, 2018, when she stepped into a pothole and fell.  (Compl., ¶ 8.)  On June 28, 2022, the Court issued an order of dismissal pursuant to Code of Civil Procedure sections 583.410 and 583.420 after Plaintiff failed to make an appearance at: (1) an OSC re: Dismissal for failure to serve/prosecute, (2), an OSC: re Plaintiff’s request for entry of default/default judgment, and (3) a trial setting conference.

On July 1, 2022, Plaintiff filed this motion to set aside the dismissal pursuant to Code of Civil Procedure section 473(b).  Plaintiff’s counsel declared that no appearance was made because her office failed to calendar the hearing date due to staff turnover.  Defendant argues that the dismissal was not due to “attorney fault” because it was a calendaring clerk’s error.  However, an attorney is responsible for supervising the work of their legal assistants and their assistants’ mistakes are attributable to counsel for purposes of section 473(b).  (See Hu v. Fang (2002) 104 Cal.App.4th 61, 64.)

“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.”  (Code Civ. Proc., § 473, subd. (b).)  Application for this relief shall be made within a reasonable time, in no case exceeding six months, after judgment, dismissal, order, or proceeding was taken.  (Ibid.)  “[T]he 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.”  (Ibid.)

This Motion to set aside dismissal was timely filed within six months of dismissal and the Court finds dismissal was due to counsel’s excusable neglect.  The Motion to set aside the June 28, 2022, dismissal is GRANTED and the action is reinstated.  Plaintiff’s counsel is ordered to pay within 20 days defense counsel’s fees for appearing at the June 27, 2022, hearing and opposing this motion in the reduced amount of $480.51, consisting of 3 hours at defense counsel’s hourly rate of $160.17.  Defendant’s deadline to move for orders compelling Plaintiff’s further responses to Special Interrogatories (Set One) is set for October 17, 2022. The OSCs regarding delay in prosecution/default judgment are discharged because the only named defendant filed an answer on March 21, 2022.  

          A trial setting conference is set for October 26, 2022, at 8:30 a.m. in Department 27. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.