GREGORY GRAY, ET AL VS ALBERT LON CHANEY

Tentative Rulings

Case Number: YC070900    Hearing Date: July 02, 2020    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Thursday, July 2, 2020

Department B Calendar No. 8

PROCEEDINGS

Gregory Gray, et al. v. Albert Lon Chaney III, et al.

YC070900

1. Gregory Gray, et al.’s Motion to Set Aside Dismissal

2. Albert Lon Chaney III’s Motion Requesting Clarification of the Order of Dismissal Entered on August 21, 2019 and Motion to Set Aside Dismissal of Cross-Complaint and to Schedule Matter for Trial

   TENTATIVE RULING

   Gregory Gray, et al.’s Motion to Set Aside Dismissal is granted.

   Complaint

   CCP § 473(b)(1) provides, in relevant part: “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 . . . . 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.”

   The motion was filed on February 21, 2020, within six months of the entry of dismissal which was entered on August 21, 2019. Plaintiff has established that the dismissal, entered on August 21, 2019, was taken due to the mistake, inadvertence, surprise, or neglect of Plaintiff’s counsel.

   Plaintiff's counsel was engaged in another court at the time of the Final Status Conference (“FSC”) of August 14, 2019 and hired a contract attorney to appear at the FSC. However, the contract attorney did not appear and did not inform Plaintiff’s counsel of the non-appearance. In addition, Plaintiff’s counsel was not aware that the Court had set an OSC re: Dismissal on August 21, 2019 and no appearance was made on that date as well. (Decl., Kenneth Gaugh, ¶¶ 2-4.) These facts are sufficient to establish that the dismissal was entered due to the mistake, inadvertence, surprise, or neglect of Plaintiff’s counsel.

   Defendant argues that Plaintiff has failed to explain the six-month delay in moving. However, the mandatory provision does not require a showing of diligence other than the six-month time limit. “Unlike the discretionary ground for relief, a motion based on attorney fault need not show diligence in seeking relief. The motion is timely if filed within six months of the entry of the default judgment or dismissal.” Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1147. Thus, Plaintiff’s Motion to Set Aside the Dismissal is granted.

   Cross-Complaint

   Cross-Complainant Albert Lon Chaney III’s Motion Requesting Clarification of the Order of Dismissal Entered on August 21, 2019 and Motion to Set Aside Dismissal of Cross-Complaint and to Schedule Matter for Trial is granted.

   Code Civil Procedure § 473(d) states: “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

   The Court’s minute order of August 21, 2019 requires clarification because the Court did not intend to dismiss moving party’s Cross-Complaint, but, instead only the Complaint of Plaintiff. Here, on August 21, 2019, at the date of trial, the Complaint of Plaintiff was dismissed without prejudice. However, apparently, the trial did not proceed as to the Cross-Complaint of Cross-Complainant. The order of dismissal was not intended to apply to the Cross-Complaint. Thus, the Court orders that the dismissal of the Cross-Complaint is hereby set aside.

   The Court hereby orders the instant action restored to the civil calendar.

   The final status conference date is ___________________.

   The trial date is _________________________.

   Plaintiff is ordered to give notice of this ruling.