JOSE MEJIA VS ROSENDIN ELECTRIC INC ET AL

Tentative Rulings

Case Number: BC653271    Hearing Date: April 28, 2021    Dept: 29

Mejia  vs.  Rosendin Electric Inc., et. al.

TENTATIVE

Plaintiff’s motion to set aside dismissal is denied.

Legal Standard

A “motion for reconsideration” is provided for in CCP § 1008 (a). However, § 1008(b) relates to a “renewed motion.” (California Correctional Peace Officers Ass'n v. Virga (CCPOA) (2010) 181 Cal.App.4th 30, 43, fn. 11; see also Tate v. Wilburn (2010) 184 Cal.App.4th 150, 156-157.) A motion for reconsideration (§1008(a)) seeks to modify or set aside the court's previous order. A renewed motion seeks the same relief that was previously denied.

When a motion has been denied in whole or in part, the moving party may apply again for the same relief at a later time only on the following conditions: (1) The motion must be based on "new or different facts, circumstances or law,” and (2) The motion must be supported by declaration showing the previous order, by which judge it was made, and what new or different facts, circumstances or law are claimed to exist. (CCP § 1008(b); see Graham v. Hansen (1982) 128 CA3d 965, 969-970.) There is no time limit under § 1008 for the renewal of a previous motion. (See CCP § 1008(b) and (e); Stephen v. Enterprise Rent-A-Car of San Francisco (1991) 235 CA3d 806, 816.)

Discussion

Plaintiff moves to vacate dismissal of the instant action on several grounds. The Court discusses each basis in turn.

A. Renewed Motion under CCP §§ 1008(b) and 473(b)

In part, Plaintiff moves to vacate dismissal on grounds that Plaintiff’s counsel committed excusable neglect, mandating mandatory and discretionary relief. Plaintiff previously sought such relief, and the Court denied Plaintiff’s motion. (November 26, 2019 Minute Order.)

CCP § 473(b) provides that the court has broad discretion to vacate the entry of default, default judgment or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure and within the set time limits. Pursuant to CCP § 473(b), a motion to set aside/vacate cannot be brought more than 6 months after the entry of default and must be made within a “reasonable time.” The six-month time limit is jurisdictional. (Rutan v. Summit Sports, Inc. (1985) 173 Cal.App. 3d 965, 970.)

Plaintiff again argues that Plaintiff’s counsel, an associate with the firm assigned to the case that is no longer with the firm, missed an appearance and failed to calendar a subsequent appearance. The firm was not aware of the dismissal until it received the ruling via mail. (Heckard-Bryant Decl., ¶ 9.) Plaintiff uses these facts to argue that both mandatory and discretionary relief are appropriate. 

Plaintiff failed to comply with CCP §1008(b). As this argument was presented previously, it is neither new nor different. The motion is denied on this ground. 

B. Additional Relief Under CCP §§ 1008(b), 473(d), and 583.210(a)

In part, Plaintiffs moves to vacate the dismissal on grounds that CCP § 583.210(a) sets an outer limit of three years for service of a summons and complaint, and CCP § 473(d) provides grounds for discretionary relief. 

CCP § 473(d) provides that “[t]he court may . . . on motion of either party after notice to the other party, set aside any void judgment or order.” (CCP § 473(d).) Relief pursuant to section 473(d) Iver

Relief from default or default judgment or dismissal can be sought at any time on the ground of extrinsic mistake. (Olivera v. Grace (1942) 19 Cal.2d 570, 576; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.) This is a form of equitable relief, rather than statutory relief, and is based on a finding by the court that the judgment is void. (See Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180-81 [contrasting CCP § 473(d) and extrinsic fraud and mistake]; Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 47 [“After the six-month period for statutory relief has passed, the court may still grant relief on equitable grounds, including extrinsic fraud or mistake.”].)

There are three essential requirements to obtain relief on this ground: (1) a meritorious defense; (2) diligence in seeking relief once the default or default judgment is discovered; and (3) a satisfactory excuse for not presenting a defense to the original action. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.) The statutory time limits on relief under CCP §§ 473(b) and 473.5 do not apply, but once the purported extrinsic fraud or mistake is discovered, a party is expected to proceed diligently to seek relief. This requirement is inextricably intertwined with prejudice to the plaintiff. (Id., at 983-984.)

‘Extrinsic mistake’ is broadly applied to cover situations in which circumstances extrinsic to the litigation have cost a party a hearing on the merits.  (Rappleyea, supra, at 981.) These are usually cases of excusable neglect by defendant or defendant’s attorney in failing to appear and present a defense. If such neglect results in an unjust judgment without a fair adversary hearing, the basis for equitable relief is present and is often called extrinsic mistake.  (Kulchar Kulchar Kulchar Kulchar (1969) 1 Cal.3d 467, 471.) 

CCP § 583.210(a) provides, “The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.”

Plaintiff uses the same facts. Plaintiff’s counsel, an associate with the firm assigned to the case that is no longer with the firm, missed an appearance and failed to calendar a subsequent appearance. The firm was not aware of the dismissal until it received the ruling via mail. (Heckard-Bryant Decl., ¶ 9.) Plaintiff uses these facts to argue excusable neglect and extrinsic mistake. 

Plaintiff failed to comply with CCP §1008(b). Plaintiff has failed to show what new or different facts, circumstances, or law are claimed to be shown. Plaintiff presents a new argument regarding CCP §§ 473(d) and 583.210(a); however, Plaintiff fails to provide a satisfactory explanation for failing to present this argument at the first motion and hearing, i.e. a showing of reasonable diligence. (Weil & Brown, Civil Procedure Before Trial, (2019) ¶ 9:329; see CCPOA, supra, 181 Cal.App.4th at 45 [“Defendants may not make seriatim motions that seek the same relief; rather Defendants were obligated to put forth all of their reasons for an award of attorneys’ fees when they made their initial request.”].)

Where the statutory requirements are not met, the renewal motion must be denied. (CCP §1008(b).)

Conclusion

Plaintiff’s motion to set aside dismissal is denied.

Case Number: BC653271    Hearing Date: March 29, 2021    Dept: 28

This matter was incorrectly reserved in Dept. 28.  The case is filed in Dept. 29.

The hearing on the matter will be heard in Dept. 29 on April 28, 2021 at 1:30 p.m.

Case Number: BC653271    Hearing Date: November 26, 2019    Dept: 2

Mejia v. Rosendin Electric, Inc., et al.

Plaintiff’s Motion to Set Aside Dismissal filed on 10/21/19 is DENIED.

Requests for relief under the discretionary or mandatory provisions of Cal Code Civil Procedure § 473(b) must be made within six months of the dismissal.

The 6-month time limit is jurisdictional. The court cannot consider any motion made after that period has elapsed. Stevenson v. Turner (1979) 94 Cal. App. 3d 315, 318.

The court’s order of dismissal was made and served on Plaintiff’s counsel on 3/21/19. The 6-month period elapsed on 9/21/19. The motion was filed on 10/21/19.  The Court thus lacks jurisdiction to grant the requested relief.

Moving party is ordered to give notice.

Case Number: BC653271    Hearing Date: November 25, 2019    Dept: 2

Mejia v. Rosendin Electric, Inc., et al.

Plaintiff’s Motion to Set Aside Dismissal filed on 10/21/19 is DENIED.

Requests for relief under the discretionary or mandatory provisions of Cal Code Civil Procedure § 473(b) must be made within six months of the dismissal.

The 6-month time limit is jurisdictional. The court cannot consider any motion made after that period has elapsed. Stevenson v. Turner (1979) 94 Cal. App. 3d 315, 318.

The court’s order of dismissal was made and served on Plaintiff’s counsel on 3/21/19. The 6-month period elapsed on 9/21/19. The motion was filed on 10/21/19.  The Court thus lacks jurisdiction to grant the requested relief.

Moving party is ordered to give notice.