KSENIA GERASIMOVA VS ROBERT CLARENCE MASHALL ET AL

Tentative Rulings

Case Number: ****4896    Hearing Date: July 23, 2020    Dept: 27

Case Number: ****4896    Hearing Date: November 15, 2019    Dept: 4B

[TENTATIVE] ORDER RE: NOTICE OF MOTION TO VACATE DISMISSAL

On November 28, 2017, plaintiff Ksenia Gerasimova (“Plaintiff”) filed this action against defendants Robert Clarence Marshall, Lili Haydn, Lili Haydn Trust for assault and battery, intentional infliction of emotional distress, and negligence. Later Plaintiff dismissed Lili Hayden and Lili Haydn Trust. At the Final Status Conference on May 14, 2019, Plaintiff’s counsel stated Plaintiff was obtaining a default against a defendant. Accordingly, the Court set an OSC re dismissal for failure to file a default judgment for August 29, 2019. Plaintiff’s counsel failed to appear at the August 29, 2019 hearing and did not obtain a default or submit a default judgment package. The Court dismissed the action.

“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.” (Code Civ. Proc., ; 473, subd. (b).) Application for this relief shall be made within a reasonable time, in no case exceeding six months, after judgment, dismissal, order, or proceeding was taken. (Ibid.) “[T]he 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.” (Ibid.)

Plaintiff’s counsel states he incorrectly calendared the August 29, 2019 date. However, Plaintiff did not file a proof of service showing serve of the motion on defendant Marshall, who appears to be the remaining defendant in this case. Therefore, the motion is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. The Court will be dark on November 15, 2019. A party requesting argument should contact Department 4B for an alternate hearing date.