FRANCISCO GIL PRIETO BAUTISTA VS SONORA BAKERY INC

Tentative Rulings

Case Number: ****9773    Hearing Date: February 05, 2020    Dept: 29

Case Number: ****9773    Hearing Date: February 06, 2020    Dept: 29

Bautista v. Sonora Bakery, Inc.

Plaintiff’s Motion to Set Aside Dismissal and to Recalendar Trial, filed on 01/14/2020, is GRANTED.   Cal Code Civil Procedure ;473(b).

SUFFICIENCY OF NOTICE

Plaintiff personally served the motion on 01/14/2020, giving Defendant 16 court days of notice. However, the motion was not served on Defendant; it was served on the client, Sonora Bakery. Reply, Ex. H. The client is represented by counsel. Defendant was not given the 5-day extended notice for service by mail. Cal Code Civil Procedure ; 1005(b).

However, Defendant has not shown any prejudice resulting from the defective notice. Under certain circumstances, a party may be deemed to have waived any irregularity in the notice by appearing at the hearing, opposing the motion, not asking for a continuance and not demonstrating any prejudice resulting from the shortened notice.Carlton v. Quint (2000) 77 Cal. App. 4th 690. A showing of prejudice arising from defective notice is required. Reedy v. Bussell (2007) 148 Cal. App. 4th 1272, 1289.

The purpose of the notice period is to allow the other party to file an opposition. If an opposition is filed and no prejudice is shown, then the purpose of the notice requirements is met. The defect is waived. Arambula v. Union Carbide Corp. (2005) 128 Cal. App. 4th 333, 342-343.

Defendant has not shown any prejudice resulting from defective notice. The Court has considered the timely-filed opposition.

MERITS OF MOTION

The Court has discretion to grant relief from dismissal where dismissal is taken through a party’s mistake, inadvertence, surprise, and excusable neglect. Cal Code Civil Procedure ; 473.

If there is no prejudice, only slight evidence is needed. Doubts are resolved in favor of the party seeking relief. Mink v. Superior Court (1992) 2 Cal.App.4th 1338. The law strongly favors trial and disposition on the merits. Therefore, any doubts in applying section 473 must be resolved in favor of the party seeking relief. Id at 1343.

Plaintiff filed a proposed Stipulation and Order to Continue Trial on 09/03/2019. Motion, Ex. F. However, the Court’s file reflects that the Court rejected the filing on 09/05/2019 because a stipulation to continue trial cannot exceed a total continuance of six months from the original trial date.

Counsel declares she paid the filing fee and received confirmation that the proposed stipulation and order was filed. Declaration of Cristal Cabrera, ¶ 9. Counsel declares she never received a notice of rejection of the stipulation and order. Id.

Dismissal occurred due to counsel’s inadvertence and excusable neglect, defined as “lack of heedfulness or attentiveness, inattention, fault from negligence. Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the same circumstances.” Alderman v. Jacobs (1954) 128 Cal. App. 2d 273.

Defendant’s request in opposition that the Court should dismiss the case is DENIED. Discretionary dismissals are made by noticed motion. Cal Code Civil Procedure ; 583.410(a).

The Court orders Plaintiff’s counsel to pay penalties of $632.65 to defense counsel pursuant to Cal Code Civil Procedure ; 473(c)(1)(A) which permits imposition of penalties upon an offending attorney or party no greater than $1,000.00.

The Court sets the following dates:

FSC:  April 21, 2020 at 10:00 a.m.

Trial:  May 5, 2020 at 8:30 a.m.

Moving party is ordered to give notice.

b"

Case Number: ****9773 Hearing Date: October 26, 2021 Dept: 29

TENTATIVE:

Therefore, the Court takes the duplicate Motion to be Relieved as Counsel (Res. ID x 4643) off-calendar, along with its duplicate hearing.

eCourt does not reflect that Plaintiff's counsel has filed a proof of service of the Court’s 10/13/21 Minute Order on Plaintiff. On August 13, 2021, the pending Motion to be Relieved as Counsel (Res. ID x 1194) was filed by Plaintiff’s attorney of record, Gabriel Sepulveda Sanchez.

The motion was continued from a 9/8/21 hearing date because of a service issue. Counsel complied with the ruling with the exception of a notice of ruling that the motion was continued.

Counsel claimed his client breached their agreement and is not responding to communication attempts. The Court granted the motion but ordered that relief as counsel is not effective until proof of the Court’s 10/13/21 Minute Order is filed with the Court. The Court continued the Trial Setting Conference to 10/26/2021.

However, on 9/10/21, Plaintiff’s attorney of record, Gabriel Sepulveda Sanchez seems to have filed a duplicate Motion to be Relieved as Counsel (Res. ID x 4643), thereby scheduling a redundant hearing for 10/13/21 which was also continued to 10/26/21.

b'

Case Number: ****9773 Hearing Date: October 13, 2021 Dept: 29

Motion: Motion to Withdraw

Moving Party: Gabriel Sepulveda-Sanchez of Sepulveda Sanchez Law, PC, attorney for Plaintiff Francisco Gil Prieto-Bautista

Responding Party: None

TENTATIVE: Motion is GRANTED.

Reason: The motion complies with the procedural requirements of CRC rule 3.1362.

Analysis: The motion was continued from a 9/8 hearing date because of a service issue. Counsel complied with the ruling with the exception of a notice of ruling that the motion was continued. Counsel claims client breached their agreement and is not responding to communication attempts. The trial setting conference is 10/13/2021.

Moving party to give notice. Relief as counsel is not effective until proof of this order is filed with the court.

b'

Case Number: ****9773 Hearing Date: September 8, 2021 Dept: 29

Motion: Motion to Withdraw

Moving Party: Gabriel Sepulveda-Sanchez of Sepulveda Sanchez Law, PC, attorney for Plaintiff Francisco Gil Prieto-Bautista

Responding Party: None

Recommendation: Motion is GRANTED if Counsel provides proof of service of the motion on Plaintiff. (The proof of service does not expressly list Plaintiff Francisco Gil Prieto-Bautista.)

Reason: The motion complies with the procedural requirements of CRC rule 3.1362, however proof of service on the client must be rectified or the motion is denied.