HATAM, ANTHONY VS MINASIAN, JOSIE

Tentative Rulings

Case Number: 17K08129    Hearing Date: November 19, 2019    Dept: 94

MOTION TO VACATE DISMISSAL

(CCP § 473(b), discretionary)

TENTATIVE RULING:

Plaintiff Anthony Hatam’s Motion to Vacate Dismissal is GRANTED.

OPPOSITION: Filed on April 9 & 22, Sept. 18, 2019

REPLY: Filed Sept. 18, 2019

ANALYSIS:

I. Background

Plaintiff Anthony Hatam (“Plaintiff”) filed the instant action for breach of a lease agreement against Defendant Josie Minasian (“Defendant”) on June 28, 2017. Because Plaintiff failed to appear for trial and to timely pursue default judgment, the Court dismissed this action without prejudice on December 28, 2018.

On March 21, 2019, Plaintiff filed the instant Motion to Vacate Dismissal (the “Motion”) under the discretionary provision of CCP § 473(b). Defendant twice filed her Opposition Papers on April 9 and 22, 2019. The Court STRIKES the Opposition from April 22 from the record as it is not permissible under CCP § 1005 and the Court did not authorize such filing.

At the previous hearing on July 16, the Court found that Plaintiff failed to demonstrate that he brought the instant Motion within reasonable time. (7/16/19 Minute Order.) Plaintiff has filed a Reply to explain the reasonable time issue. Defendant then filed an Opposition to Plaintiff’s reply on September 18, which is not permissible under CCP § 1005 and was not authorized by the Court. The September 18 Opposition is STRICKEN.

II. Analysis

“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.” (CCP § 473(b).) Relief under CCP § 473(b) is also available to plaintiffs because dismissal is the “practical equivalent of a default judgment.” (Aldrich v. San Fernando Valley Lumber Co., Inc.

A. Timeliness

Plaintiff brought the instant Motion less than four months after the dismissal. Thus, Plaintiff has satisfied the six-month time requirement under the statute. But the discretionary provision of Section 473(b) also requires Plaintiff to bring the Motion “within a reasonable time.” “[A] threshold requirement for relief is the moving party’s diligence. [Citation.]” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420.) “[R]elief is not warranted unless the moving party demonstrates diligence in seeking it. [Citation.]” (Id.) In opposition, Defendant contends that Plaintiff fails to demonstrate that he brought the instant Motion within a reasonable time.

In reply, Plaintiff declares that he went to the emergency room on December 16, 2018 and was diagnosed with lung cancer. (Reply, Hatam Decl. ¶ 5.) From then until March 2019, Plaintiff “suffered fatigue, anxiety, forgetfulness[,] and depression.” (Id., Hatam Decl. ¶ 5.) On or about January 2, 2019, Plaintiff received court clerk’s notice that this action had been dismissed for failure to appear for trial, so he promptly hired his current attorney on January 4 to vacate the dismissal. (Id., Hatam Decl. ¶¶ 3-4.) Plaintiff’s counsel states that he was not able to file this Motion earlier because he had to attend to his mother’s medical needs in New York from January to March 2019. (Id., Tamer Decl. ¶¶ 3-4.)

“‘[W]hat is a reasonable time in any case depends upon the circumstances of that particular case’’ [citation], and ‘[w]hether a party has acted diligently is a factual question for the trial court’ [citation].” (Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1145.) Given the unique circumstances explained above, the Court is persuaded that Plaintiff brought the instant Motion within a reasonable time.

B. Merits

“To entitle [a party] to relief the acts which brought about the default must have been the acts of a reasonably prudent person under the same circumstances.” (Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58.) “‘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.] [¶] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.’ [Citation.] An order denying a motion for relief under section 473 is therefore ‘‘scrutinized more carefully than an order permitting trial on the merits.’’ [Citation.]” (Murray & Murray v. Raissi Real Estate Development, LLC (2015) 233 Cal.App.4th 379, 385.)

Here, Plaintiff promptly brought the instant Motion within three months and there is no prejudice shown to Defendant. Thus, very slight evidence is required, and the Court must liberally apply Section 473(b). Given that Plaintiff had to go to an emergency room and was diagnosed with cancer, the Court finds his mistake in not correctly calendaring the trial date to be reasonable. Granting relief from dismissal to Plaintiff is, therefore, consistent with the strong policy of deciding cases on their merits.

“[T]he law ‘looks with [particular] disfavor on a party who, regardless of the merits of his cause, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.’ [Citation.]” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) This is exactly what Defendant is doing here by filing three different opposition papers, two of which are improper and without Court’s authorization.

III. Conclusion & Order

For the stated reasons, the Motion is GRANTED.