Tentative Rulings

Case Number: BC661955    Hearing Date: December 28, 2020    Dept: 32

Plaintiff Fabiola Bravo (“Plaintiff”) filed this action on May 18, 2017, naming as defendants, among others: (1) Dollar Max #9, (2) Kyung Mi You and YongTaek Kim dba Dollar Max #9, (3) Young Taek Kim, and (4) Kyung Mi You.  None of these defendants has been served.  Per Code of Civil Procedure section 583.210, the summons and complaint must be served within three years.  It does not appear to the Court that any of the exceptions noted in Code of Civil Procedure section 583.240 excuse the failure to serve within this time period.  Therefore, per Code of Civil Procedure section 583.250, the Court is required to dismiss the complaint against these defendants.

The Court previously held an Order to Show Cause why these defendants should not be dismissed for failure to serve.  Plaintiff’s counsel provided no good cause.  The Court continued the OSC to December 28, 2020, at 8:30 a.m. to afford Plaintiff’s counsel another opportunity to show good cause why these defendants should not be dismissed.  No good cause having been shown, the Court dismisses each of these defendants with prejudice.  Plaintiff shall provide notice to those defendants who have been served and answered. 

Case Number: BC661955    Hearing Date: January 13, 2020    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

Plaintiff Fabiola Bravo (“Plaintiff”) moves to set aside the Court’s order dismissing this case. The Court had set an Order to Show Cause re: Dismissal for June 27, 2019, at which Plaintiff’s counsel did not appear. Therefore, the Court (Seigle, J.) dismissed this case.

Per Code of Civil Procedure, section 473, subdivision (b), a court may “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.” The party must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Ibid.) “[W]hen relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-982, internal quotations omitted.)

Here, Plaintiff has proffered a declaration from her counsel, Mark J. Giannamore (“Counsel”). Counsel states that he attempted to file a request for entry of default against Defendant on Friday, June 21, 2019, but the Clerk’s Office did not process the request before the OSC hearing on Thursday, June 27, 2019.

The Court is concerned by Plaintiff’s counsel approach. First, he waited until four court days before OSC to file the request. Second, when the request was not processed, he failed to appear at the OSC hearing. Finally, the Court is concerned that Plaintiff’s counsel filed a motion with handwritten changes rather than typing the changes and filing a proper motion. Nevertheless, the Court grants the motion, which is unopposed.

CONCLUSION AND ORDER

The Court grants Plaintiff’s motion to set aside the dismissal. The Court sets an Order to Show Cause re: Entry of Default for March 13, 2020, at 8:30 a.m. Plaintiff shall provide notice and file proof of such with the Court.

DATED: January 13, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court