Tentative Rulings

Case Number: ****0554 Hearing Date: October 4, 2021 Dept: 32

PLEASE NOTE: Parties who intend to submit on this tentative must send an email to the court at sscdept32@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 in-person or remotely.

TENTATIVE RULING

MOTION

Plaintiff Maria Soria (“Plaintiff”) through her legal representative, Carson C. Newton (“Counsel”), moves to set aside the Court’s order of November 12, 2020, in which the Court dismissed Plaintiff’s complaint for failure to appear at the Jury Trial; Final Status Conference; Order to Show Cause Re: dismissal for failure to prosecute (“OSC”). The motion is unopposed.

ANALYSIS

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.” In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.” (Code Civ. Proc., ; 473, subd. (b).)

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., ; 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4^th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]). “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.)

Here, Plaintiff advances the declaration of Counsel. Counsel avers that the COVID-19 pandemic forced Counsel’s office to close when Counsel’s office took on Plaintiff’s case. (Declaration of Carson C. Newton, ¶ 2.) Counsel states that, as a result of the office closure, Counsel failed to instruct his team to calendar the existing dates in this matter. (Declaration of Carson C. Newton, ¶ 3.) Counsel avers that he failed to appear at the OSC as a result of Counsel’s mistake in calendaring. (Declaration of Carson C. Newton, ¶ 4.) Counsel demonstrates that Plaintiff’s failure to appear at the OSC was due to Counsel’s mistake, inadvertence, or neglect.

CONCLUSION AND ORDER

Therefore, the Court grants Plaintiff’s motion to set aside the Court’s dismissal of Plaintiff’s complaint on November 12, 2020.

Further, the Court finds that Plaintiff has not filed a proof of service establishing service of the summons and complaint on Doe Defendant 1 (GIG TCG Wave Master Property Owner LLC) within 60 days of the filing of the complaint or the Amendment to Complaint. (See Cal. Rules of Court, rule 3.110(b).) Therefore, the Court sets an Order to Show Cause re why monetary sanctions should not be imposed due to Plaintiff’s failure to file a proof of service of the summons and complaint for December 3, 2021 at 8:30 A.M. in Department 32. (See Cal. Rules of Court, rule 3.110(f).) Plaintiff must file any responsive papers at least five calendar days before the Order to Show Cause. (See Cal. Rules of Court, rule 3.110(i).) The Court may impose monetary sanctions against Plaintiff or Counsel for Plaintiff, at the time of the Order to Show Cause if Counsel for Plaintiff or Plaintiff fail to appear, or fail to give good cause for the delay in serving the summons and complaint. (See Code Civ. Proc., ;; 128, 177.5; Cal. Rules of Court, rule 2.30.) In the alternative, the Court sets a Trial Setting Conference for December 3, 2021 at 8:30 A.M. in Department 32.

Plaintiff shall provide notice of the Court’s ruling and file proof of service of such.

Case Number: ****0554    Hearing Date: February 28, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

Attorney Carson C. Newton, Esq. (“Counsel”) moves to be relieved as counsel for Maria Soria (“Plaintiff”). Counsel’s declaration establishes good cause for the Court to grant the motion, as it outlines the communications issues with Plaintiff. This is a proper basis for withdrawal. Therefore, the Court intends to grant the motion.

The Court issued an Order to Show Cause re: Sanctions (“OSC”) against Counsel and Plaintiff. Counsel filed a declaration, dated February 20, 2020, which the Court has reviewed and considered. The declaration establishes good cause, so the Court is prepared to discharge the OSC. The Court initially ordered that Counsel must appear personally. Given the contents of the declaration, as well as Counsel’s recent move to Northern California, a personal appearance is not necessary. If Counsel wishes to submit on this tentative, he may email the Court’s clerk at SSCDept32@lacourt.org and need not appear at the hearing. If Counsel wishes to appear at the hearing, he may do so via court call. Finally, if Counsel wishes Ms. Schmidt to appear at the hearing in his place, the Court will excuse Counsel from appearing. In short, Counsel does not need to drive from Northern California to attend this hearing.

The Court intends to set the following trial dates so Plaintiff has sufficient time to retain new counsel or represent herself:

Final Status Conference: October 21, 2020, at 10:00 a.m.

Trial: November 3, 2020, at 8:30 a.m.

The discovery and motions cut-off shall be based on the new trial date. The Court’s clerk shall provide notice.

DATED: February 28, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court