Tentative Rulings

Case Number: ****5233    Hearing Date: June 23, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

Plaintiffs Mark Cutting and Sophia Cutting (collectively “Plaintiffs”) sustained injuries in a motor vehicle collision with Defendant Alkabbani Mohanad. Plaintiff also named Defendants Hadley Towing Company, Inc., and FMG, Inc., dba Hadley Tow. On May 25, 2018, Plaintiffs filed a request for dismissal of Plaintiff Mark Cutting’s claims.

On August 8, 2018, Plaintiffs’ counsel filed a notice of automatic stay as to all parties, due to the bankruptcy filing by Hadley Collision Center, Inc. Plaintiffs’ counsel explains that his office received notice of a hearing date in the bankruptcy case, even though Plaintiffs have not sued an entity known as Hadley Collision Center, Inc. Plaintiffs’ counsel therefore concluded that Hadley Collision Center, Inc. is related to one or more of the Defendants in this case. On March 18, 2020, Plaintiff’s counsel notified the Court that Hadley Collision Center, Inc. is not related to the Defendants in this case. Therefore, the Court lifts the stay.

Plaintiffs now move to set aside the dismissal they filed on May 25, 2018. 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.” The party must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Ibid.) “[W]hen relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-982, internal quotations omitted.)

Plaintiffs timely filed their motion on September 19, 2018. Plaintiffs proffer the declaration of their counsel, which states that he mistakenly filed a request for dismissal of this action instead of another case. The Court finds that Plaintiffs’ dismissal was the result of their counsel’s mistake and therefore grants the motion.

CONCLUSION AND ORDER

Plaintiffs’ motion to set aside the dismissal is granted. The Court shall hold an Order to Show Cause re: Dismissal on January 29, 2021, at 8:30 a.m. The Court’s clerk shall provide notice.

DATED: June 23, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: ****5233    Hearing Date: January 31, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 5

The Court posted the following tentative order on or before August 11, 2019, and ordered Plaintiffs to file a status report on the bankruptcy on or before January 17, 2020. Plaintiffs failed to do so. Therefore, the Court adopts this tentative order and denies the motion. The Court’s clerk shall provide notice.

TENTATIVE ORDER

Plaintiffs Mark Cutting and Sophia Cutting (collectively “Plaintiffs”) sustained injuries in a motor vehicle collision with Defendant Alkabbani Mohanad. Plaintiff also named Defendants Hadley Towing Company, Inc., and FMG, Inc., dba “Hadley Tow” in the complaint. Plaintiffs have not yet served any Defendants.

On May 25, 2018, Plaintiffs filed a request for dismissal without prejudice of Plaintiff Mark Cutting’s claim. Plaintiffs now move to vacate the order of dismissal, pursuant to Code of Civil Procedure section 473(b). In his declaration, Plaintiff’s counsel states that his clients had two different civil actions, and he filed the request for dismissal in the wrong case. (Declaration of Matthew L. Bartholomew, at ¶¶ 6-8.) Pursuant to the request, the Court dismissed Plaintiff Mark Cutting’s claim.

On August 8, 2018, Plaintiffs’ counsel filed a notice of automatic stay as to all parties, due to the bankruptcy filing by “Hadley Collision Center, Inc.” Plaintiffs’ counsel represents that his office received notice of a hearing date in the bankruptcy case, even though Plaintiffs have not sued an entity known as “Hadley Collision Center, Inc.” Plaintiffs’ counsel therefore concluded that “Hadley Collision Center, Inc.” is related to one or more of the Defendants in this case. (See Supplemental Declaration of Matthew J. Bartholomew.)

The Court (Lu, J.) previously held a hearing on this motion. The Court ruled that it could not consider the motion because the automatic stay that a bankruptcy filing triggers prohibits all judicial actions, except ministerial acts. (McCarthy, Johnson & Miller v. North Bay Plumbing, Inc. (9th Cir. 2000) 217 F.3d 1072, 1080.) Ministerial acts are defined narrowly as only those that “entail no deliberation, discretion, or judicial involvement.” (Ibid.) However, the Court continued the hearing on this motion and ordered supplemental briefing and evidence whether any of the defendants in this action are, in fact, related to the entity that declared bankruptcy.

In his supplemental declaration, Plaintiff’s counsel suggests that the entities named in this action are, in fact, related to the entity that declared bankruptcy. (Supplemental Declaration of Matthew Bartholomew, at ¶ 8.) In the alternative, Plaintiffs requested a continuance in order to seek an exception from the automatic stay so this Court may rule on the pending motion. On January 25, 2019, this Court (Goorvitch, J.) concluded that it could not consider the pending motion while the automatic bankruptcy stay is in effect. The Court continued the hearing on this motion to August 12, 2019, to afford Plaintiffs an opportunity to seek relief from the U.S. Bankruptcy Court. Plaintiffs were ordered to provide a status report on the pending bankruptcy case on or before August 12, 2019. Nothing has been filed since the prior hearing date.

Therefore, for the reasons discussed above, this motion is continued to January 31, 2020, at 1:30 p.m., to afford Plaintiffs an opportunity to seek relief from the U.S. Bankruptcy Court. Plaintiffs are ordered to file a status report concerning the status of the U.S. Bankruptcy case and their efforts to seek relief from the stay on or before January 17, 2020. Should Plaintiffs fail to file a status report on or before January 17, 2020, or fail to appear at the hearing on January 31, 2020, to provide some explanation as to the status of the case, the Court intends to deny the motion.

The hearing on this motion is continued to January 31, 2020, at 1:30 p.m. Plaintiffs shall file a status report concerning the status of the U.S. Bankruptcy case and their efforts to seek relief from the stay on or before January 17, 2020. Plaintiffs shall provide notice and file proof of such with the Court.