LATONYA LYLES ET AL VS JULIE IMATOMI

Tentative Rulings

Case Number: ****5551    Hearing Date: December 22, 2020    Dept: 31

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiffs, Latonya Lyles and William Hulitt filed this action against Defendant, Julie Imatomi for damages arising out of an automobile accident.  Plaintiffs filed the complaint on 6/19/17.  Defendant filed an answer on 7/20/18 and a cross-complaint against Geoff West on 11/08/18.  West answered the cross-complaint and asserted his own cross-complaint against Imatomi on 12/28/18.  In October of 2019, West and Imatomi each dismissed their cross-complaints, leaving only the main action pending. 

The case was scheduled for an FSC on 11/20/19 and trial on 12/02/19.  No party appeared on either date, and on 12/02/19 the Court dismissed the action.  On 6/02/20, Plaintiff, Hulitt filed this motion to vacate the dismissal based on his counsel’s affidavit of fault.  The court heard this matter on 11/4/20, where Plaintiff requested to continue the matter 12/22/20 because of probate issues.  (Min. Order 11/4/20.)  No party has filed anything additional following the continuance concerning the probate issues, this motion or otherwise.   

The court now rules as follows on Plaintiff’s motion to vacate dismissal:

Hulitt provides evidence that Counsel had agreed to a trial continuance prior to the 12/02/19 trial date, and Hulitt did not believe the trial was going forward on 12/02/19.  Hulitt did not realize, until recently when seeking a new trial date in light of the pandemic, that the action had been dismissed. 

Defendant, Julie Imatomi opposes the motion.  Imatomi asserts that the motion should be denied because it was not made within 6 months of the action being dismissed.  Further, Imatomi asserts that the case has been settled and there is a lack of standing because Hulitt is now deceased.

First, as to Imatomi’s contention that the instant motion is untimely, CCP ; 473(b) states 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 … dismissal entered against his or her client…

(Emphasis added.)

Where a statute establishing a time limitation is susceptible of several possible interpretations a liberal rule of construction is applied, and the “ computation of time should be so made as to protect a right and prevent a forfeiture if this can be done without violating a clear intention or a positive statutory provision. As has been said, when the legislature requires a thing to be done within a certain time and deprives a party of a right for omitting to do it, the most liberal construction ought to be chosen and the furthest time given from which the reckoning is to be made.” [Citations.]

(Davis v. Thayer (1980) 113 Cal.App.3d 892, 903.) 

In Davis, the Court determined in construing “six months” as used in CCP ; 473, is “the equivalent of half a year and, under section 6803 of the Government Code, is the equivalent of 182 days.”  (Id. at 903.)  In regard to a default entered on 11/3/1978, the Court found the moving party had until 5/4/1979, which was 182 days after the default was entered, to file a timely motion under CCP ; 473.  (Id.)  Nevertheless, the Davis Court also implicitly recognized use of a six calendar month calculation in determining the last day to file a motion under CCP ; 473.  (Id. at 903-04 (citing Troncale v. Troncale (1960) 179 Cal.App.2d 86, 90 [If the period of six months is computed on the basis of 30 days to a month, the last day of the period would be March 2, 1958, which was Sunday… If the period of six months is computed on the basis of a calendar month, the last day of the period would be March 3, 1958. Under either method of computation, it appears that March 3 was the last day of the period of six months.”].))

In this case the underlying dismissal was entered on 12/02/19, and the instant motion was filed on 6/02/20.  182 days after 12/02/19 is 6/01/20.  However, 6/02/20 is six calendar months from the date of the dismissal.  Consequently, the motion is timely.  (See Davis, 113. Cal.App.3d at 903-04; cf. Gonzales v. County of Los Angeles (1988) 199 Cal.App.3d 601, 604 [applying reasoning from Davis and construing six-months to mean “within six calendar months or 182 days, whichever is longer”].) 

Second, however, Imatomi avers that the matter has been settled and that Hulitt has passed away.  The only evidence submitted as to either of these points are emails sent from Imatomi’s counsel to Hulitt’s counsel.  Nonetheless, to date Plaintiff has not filed a reply to the opposition or otherwise objected to this evidence.  Plaintiff seemingly admits these contentions by failing to address them.  Therefore, Hulitt’s counsel fails to establish standing to bring the instant motion in light of the evidence that Hulitt has in fact passed away.

Based on the foregoing, the motion is denied.

Plaintiff is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 22^nd day of December, 2020

Case Number: ****5551    Hearing Date: November 04, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiffs, Latonya Lyles and William Hulitt filed this action against Defendant, Julie Imatomi for damages arising out of an automobile accident. Plaintiffs filed the complaint on 6/19/17. Defendant filed an answer on 7/20/18 and a cross-complaint against Geoff West on 11/08/18. West answered the cross-complaint and asserted his own cross-complaint against Imatomi on 12/28/18. In October of 2019, West and Imatomi each dismissed their cross-complaints, leaving only the main action pending.

The case was scheduled for an FSC on 11/20/19 and trial on 12/02/19. No party appeared on either date, and on 12/02/19 the Court dismissed the action. On 6/02/20, Plaintiff, Hulitt filed this motion to vacate the dismissal based on his counsel’s affidavit of fault. Hulitt provides evidence that Counsel had agreed to a trial continuance prior to the 12/02/19 trial date, and Hulitt did not believe the trial was going forward on 12/02/19. Hulitt did not realize, until recently when seeking a new trial date in light of the pandemic, that the action had been dismissed.

Defendant, Julie Imatomi opposes the motion. Imatomi asserts that the motion should be denied because it was not made within 6 months of the action being dismissed. Further, Imatomi asserts that the case has been settled and there is a lack of standing because Hulitt is now deceased.

First, as to Imatomi’s contention that the instant motion is untimely, CCP ; 473(b) states 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 … dismissal entered against his or her client…

(Emphasis added.)

Where a statute establishing a time limitation is susceptible of several possible interpretations a liberal rule of construction is applied, and the “computation of time should be so made as to protect a right and prevent a forfeiture if this can be done without violating a clear intention or a positive statutory provision. As has been said, when the legislature requires a thing to be done within a certain time and deprives a party of a right for omitting to do it, the most liberal construction ought to be chosen and the furthest time given from which the reckoning is to be made.” [Citations.]

(Davis v. Thayer (1980) 113 Cal.App.3d 892, 903.)

In Davis, the Court determined in construing “six months” as used in CCP ; 473, is “the equivalent of half a year and, under section 6803 of the Government Code, is the equivalent of 182 days.” (Id. at 903.) In regard to a default entered on 11/3/1978, the Court found the moving party had until 5/4/1979, which was 182 days after the default was entered, to file a timely motion under CCP ; 473. (Id.) Nevertheless, the Davis Court also implicitly recognized use of a six calendar month calculation in determining the last day to file a motion under CCP ; 473. (Id. at 903-04 (citing Troncale v. Troncale (1960) 179 Cal.App.2d 86, 90 [If the period of six months is computed on the basis of 30 days to a month, the last day of the period would be March 2, 1958, which was Sunday… If the period of six months is computed on the basis of a calendar month, the last day of the period would be March 3, 1958. Under either method of computation, it appears that March 3 was the last day of the period of six months.”].))

In this case the underlying dismissal was entered on 12/02/19, and the instant motion was filed on 6/02/20. 182 days after 12/02/19 is 6/01/20. However, 6/02/20 is six calendar months from the date of the dismissal. Consequently, the motion is timely. (See Davis, 113. Cal.App.3d at 903-04; cf. Gonzales v. County of Los Angeles (1988) 199 Cal.App.3d 601, 604 [applying reasoning from Davis and construing six-months to mean “within six calendar months or 182 days, whichever is longer”].)

Second, however, Imatomi avers that the matter has been settled and that Hulitt has passed away. The only evidence submitted as to either of these points are emails sent from Imatomi’s counsel to Hulitt’s counsel. Nonetheless, to date Plaintiff has not filed a reply to the opposition or otherwise objected to this evidence. Plaintiff seemingly admits these contentions by failing to address them. Therefore, Hulitt’s counsel fails to establish standing to bring the instant motion in light of the evidence that Hulitt has in fact passed away.

Based on the foregoing, the motion is denied.

Plaintiff is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 4^th day of November, 2020

Case Number: ****5551    Hearing Date: July 23, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiffs, Latonya Lyles and William Hulitt filed this action against Defendant, Julie Imatomi for damages arising out of an automobile accident. Plaintiffs filed the complaint on 6/19/17. Defendant filed an answer on 7/20/18 and a cross-complaint against Geoff West on 11/08/18. West answered the cross-complaint and asserted his own cross-complaint against Imatomi on 12/28/18. In October of 2019, West and Imatomi each dismissed their cross-complaints, leaving only the main action pending.

The case was scheduled for an FSC on 11/20/19 and trial on 12/02/19. No party appeared on either date, and on 12/02/19 the Court dismissed the action. On 6/02/20, Plaintiff, Hulitt filed this motion to vacate the dismissal based on his counsel’s affidavit of fault. Hulitt provides evidence that Counsel had agreed to a trial continuance prior to the 12/02/19 trial date, and Hulitt did not believe the trial was going forward on 12/02/19. Hulitt did not realize, until recently when seeking a new trial date in light of the pandemic, that the action had been dismissed.

Defendant, Julie Imatomi opposes the motion. Imatomi asserts that the motion should be denied because it was not made within 6 months of the action being dismissed. Further, Imatomi asserts that there the case has been settled and there is a lack of standing because Hulitt is now deceased.

Hulitt has not filed a reply as of 7/16/20.

First, as to Imatomi’s contention that the instant motion is untimely, CCP ; 473(b) states 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 … dismissal entered against his or her client…

(Emphasis added.)

The underlying dismissal was entered on 12/02/19, and the instant motion was filed on 6/02/20, which is six months from the date of the dismissal. Consequently, the motion is timely.

Second, although Imatomi avers that the matter has been settled and that Hulitt has passed away, the only evidence submitted as to either of these points are emails seemingly sent from Imatomi’s counsel to Hulitt’s counsel. However, there is no evidence of a signed settlement agreement or that Hulitt has in fact passed away.

The Court finds Counsel’s declaration establishes excusable neglect both in connection with failing to appear at the trial and also in connection with failing to file the motion more quickly. The motion is therefore granted. CCP ; 473(b). The action is reinstated. The Court sets a Trial Setting Conference for _______________________________.

Plaintiff is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 23^rd day of July, 2020