YOLANDA JENKINS VS PARVIZ PAYGHAMY

Tentative Rulings

Case Number: BC627104    Hearing Date: November 26, 2019    Dept: 48

MOTION TO SET ASIDE AND VACATE THE ORDER OF DISMISSAL

MOVING PARTY: Plaintiff Yolanda Jenkins

RESPONDING PARTY(S): Defendant Parviz Payghamy

PROOF OF SERVICE:

• Correct Address: Yes
• 16/21 (CCP § 1005(b)): OK. Served by mail on August 27, 2019.

• DENY motion to set aside dismissal of second, third, ninth and eleventh causes of action;

  ANALYSIS

  Motion To Set Aside and Vacate Order of Dismissal

  Plaintiff moves to vacate the July 17, 2019 order dismissing Plaintiff’s second, third, ninth and eleventh causes of action pursuant to the oral request of Plaintiff’s counsel, Azuka L. Uzoh.

  Plaintiff’s counsel represents that there may have been a miscommunication between Plaintiff and her counsel regarding authorization to dismiss the above causes of action without prejudice. Declaration of Azuka L. Uzoh.

  As for mandatory relief, CCP § 473(b), provides in pertinent part:

  . . . 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 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. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.

  CCP § 473(b)(bold emphasis added).

  Here, the Court finds that the dismissal of Plaintiff’s second, third, ninth and eleventh causes of action was not in fact caused by her counsel’s mistake. Rather, the Court observed the interaction between attorney Uzoh and Plaintiff at the July 17, 2019 trial proceeding. The Court’s recollection is consistent with the recollection of Defendant’s counsel that attorney Uzoh and Plaintiff engaged in a conversation, that Plaintiff was personally present when the causes of action were voluntarily dismissed, and Plaintiff did not voice an objection to the dismissal. Declaration of Frank Whitehead, ¶ 5.

  In this regard, the Court finds that the dismissal was not in fact caused by attorney Uzoh’s mistake, inadvertence, surprise or neglect, but rather with Plaintiff’s knowledge and concurrence. Likewise, there is no ground for discretionary relief on the ground of mistake, inadvertence, surprise or excusable neglect on the part of Plaintiff herself.

  Accordingly, the motion to vacate the July 17, 2019 order dismissing Plaintiff’s second, third, ninth and eleventh causes of action is DENIED.