Judge: Yolanda Orozco, Case: 20STCV29348, Date: 2022-09-26 Tentative Ruling
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Case Number: 20STCV29348 Hearing Date: September 26, 2022 Dept: 31
MOTION
TO SET ASIDE/VACATE DISMISSAL IS CONTINUED
Background
On August 08, 2020, Plaintiff Sofia Arenas filed a Complaint against Antonio Llanos, Marina Avila (“Defendants”), and Does 1 to 10 for Partition of Real Property by Sale.
Plaintiff and Defendants acquire the subject real property as joint tenants with an undivided one-third (1/3) interest. Plaintiff filed a Complaint for Partition by Sale of Real Property.
On November 04, 2021, a Notice of Settlement was filed.
On February 10, 2022, an Order of Dismissal was filed.
On June 13, 2022, Plaintiff filed a Motion to Set Aside and Vacate the Dismissal and Leave to Defend the Action.
Defendants filed an opposition on July 13, 2022. No reply was filed.
The hearing was held on August 30, 2022, and was continued.
Legal Standard
California Code of Civil
Procedure section 473 subdivision (b) provides for both discretionary and
mandatory relief. (See Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th
298, 302.) Mandatory relief from default, default judgment, or dismissal is
available based on an attorney’s sworn affidavit attesting to his or her mistake,
inadvertence, surprise, or neglect. (Minick v. City of Petaluma (2016) 3
Cal.App.5th 15, 25-26.) Discretionary relief is available based on the party’s
own declaration or other evidence showing mistake, inadvertence, surprise, or
excusable neglect. (Id.)
Under the discretionary relief
provision, the application for 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.”
(Code Civ. Proc., § 473 subd. (b).)
Discussion
At the previous hearing held on August 30, 2022, this Court found that Plaintiff’s application was timely because it was brought within the 6-month period under CCP section 473 on June 13, 2022. This Court also found that “Plaintiff’s counsel has provided sufficient evidence attesting to his ‘mistake, inadvertence, surprise, or excusable neglect’ regarding the settlement between the parties.” (Min. Or. 08/30/22.)
However, this Court found that this Motion was not made “within a reasonable time.” Regarding section 473, the California Supreme Court explained in Benjamin v. Dalmo Mfg. Co. (1948):
“Under this statute, in addition to being made within the six months period, the application must be made within ‘a reasonable time,’ and what is a reasonable time in any case depends upon the circumstances of that particular case.' While in ‘the determination of that question, a large discretion is necessarily confided to (the trial) court’, there must be some showing some evidence as the basis for the exercise of such discretion.”
(Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 528.)
This Court found Plaintiff’s counsel failed to explain why relief from dismissal was not timely made when Plaintiff learned of Defendants’ loan and Defendants’ settlement terms.
On September 21, 2022, Plaintiff’s counsel offered a supplemental declaration explaining the delay in bringing this motion.
Plaintiff’s counsel, J.B. Casa Jr., states that on January 19, 2022, a settlement wherein Defendants would pay Plaintiff a sum certain. (Casa Jr. Decl. Ex. A.) Plaintiff’s counsel attests that around June of 2022, Defense counsel made an offer that was less than the amount agreed on in January of 2022. (See Casa Jr. Decl.) Plaintiff’s counsel sent a letter to Defense counsel rejecting the new offer and moving to set aside and vacate the dismissal. (See Casa Jr. Decl. Ex. 2.)
The Court finds that Plaintiff’s counsel has offered sufficient information to show that the Motion was timely made.
However, the Proof of Service of Plaintiff’s counsel’s declaration fails to state on what date the declaration was mailed to the Defense counsel. Moreover, the proof of service stated that the names and addresses of additional persons served are attached, but there is no attachment. Accordingly, the Court cannot determine if Defense counsel had sufficient notice that the hearing or that the declaration was filed
Based on the foregoing, the hearing is CONTINUED so that Plaintiff’s counsel can file an amended Proof of Service.
Conclusion
Plaintiff to give notice.
The
parties are strongly encouraged to attend all scheduled hearings virtually or
by audio. Effective July 20, 2020, all matters will be scheduled virtually
and/or with audio through the Court’s LACourtConnect technology. The parties
are strongly encouraged to use LACourtConnect for all their matters. All masking protocols will be observed at the Courthouse and in the courtrooms.