Judge: William A. Crowfoot, Case: BC638174, Date: 2022-10-17 Tentative Ruling

Case Number: BC638174    Hearing Date: October 17, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On October 20, 2016, plaintiff Roberto Gomez filed this action against defendants Costco Wholesale Corporation (“Defendant”), Costco Wholesale Membership, Inc., and Costco Wholesale arising from a trip and fall.  On August 27, 2019, Plaintiff’s counsel’s motion to be relieved was granted. 

On December 29, 2020, the Honorable Stephen I. Goorvitch issued an order of dismissal without prejudice as to Costco Wholesale and Costco Wholesale Membership, Inc. after they were not served and no further action had been taken to serve these defendants. 

At the jury trial and final status conference on October 12, 2021, the Honorable Michael E. Whitaker issued a minute order which purported to record a dismissal pursuant to Code of Civil Procedure section 581(b)(5) after Plaintiff failed to appear (the “October 12 Order”)

On October 27, 2021, Plaintiff filed a notice of his intention to file a motion to set aside the dismissal.  Plaintiff also filed a notice of appeal on December 6, 2021.  On December 23, 2021, the Honorable William A. Crowfoot issued a nunc pro tunc order correcting the October 12 Order to reflect that the action had been dismissed without prejudice. 

On June 7, 2022, the Court of Appeal issued a dismissal order of Plaintiff’s appeal. 

On July 7, 2022, Plaintiff filed this motion to set aside the dismissal of the case.  The motion is unopposed.  Plaintiff moves to set aside the October 12 Order on the grounds that he was unable to appear at the trial and final status conference because his sister, Clara Gomez, was recovering from a mastectomy and needed 24 hour care.  Plaintiff filed declarations on October 12, 2021 attaching a letter dated October 5, 2021 from his sister’s physician, Raouf G. Hallis, M.D., which requests the Court “allow [Plaintiff] to be available to [Ms. Gomez] 24 hours a day.”  (Pltf.’s 10/12/2021 Decl., Ex. 1.)  Plaintiff states his sister suffers from ongoing dementia which meant he was responsible for administering oxycodone to her every four hours.  (Id., ¶ 4.) 

Plaintiff points out, as the Court of Appeal did in its dismissal order dated June 7, 2022, that no signed written order of dismissal has been entered and therefore no final order or judgment yet exists in this case.  Considering this procedural irregularity, Plaintiff’s motion is technically premature as there is no effective order of dismissal to “set aside”. 

Accordingly, although the Court cannot grant Plaintiff’s unopposed motion, the case is reinstated and the Court sets a trial setting conference for December 15, 2022, at 8:30 a.m. in Department 27 of the Spring Street Courthouse.  Both parties are ORDERED to appear at the trial setting conference prepared to discuss their availability for trial and any impediments to the completion of discovery before that date.

The Court notes that this case is 5 years, 11 months, and 27 days old (2188 days).  Because the case has been on appeal, and because of the pandemic-related emergency orders, the 5-year period within which this case must be brought to trial pursuant to Code of Civil Procedure section 583.310 has been extended.  To eliminate any ambiguity as to that deadline, prior to the trial setting conference, the parties are ORDERED to meet and confer to determine the current applicable 5-year deadline and, not later than December 12, 2022, shall file with the Court a joint declaration stating that the parties have met and conferred and setting forth the agreed upon 5-year deadline for bringing the matter to trial.  If the parties are unable to agree on said date, the joint declaration will provide the Court with each party’s computation of that deadline.  This meet and confer will be an opportune time for the parties to discuss any outstanding discovery issues and timetables in anticipation of the trial setting conference.

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.