Pending - Other Pending
Contract - Other Contract
MICHAEL J. CONVEY
ROCKSTONE CONSTRUCTION & MANAGEMENT
STEINIGER MICHAEL GEORGE
12/28/2017: Civil Case Cover Sheet
12/28/2017: Notice of Case Management Conference
2/1/2018: Legacy Document
3/12/2018: Proof of Service of Summons and Complaint
3/12/2018: Declaration re: Due Diligence
4/17/2018: Notice of Rejection
4/17/2018: Request for Entry of Default / Judgment
5/2/2018: Notice of Rejection
5/2/2018: Request for Entry of Default / Judgment
5/23/2018: Case Management Statement
5/24/2018: Minute Order
6/13/2018: Legacy Document
6/13/2018: Legacy Document
6/13/2018: Legacy Document
Docketat 08:30 AM in Department U, Michael J. Convey, Presiding; Case Management Conference - Held - Continued[+] Read More [-] Read Less
DocketMinute Order ( (Case Management Conference)); Filed by Clerk[+] Read More [-] Read Less
DocketDeclaration (Declaration of Non-Service); Filed by Melinda Miller-Hoxie (Plaintiff)[+] Read More [-] Read Less
DocketProof of Service - Order Granting Attorney's Motion to be Relieved as Counsel; Filed by David Daniel Ernst (Attorney)[+] Read More [-] Read Less
Docketat 08:30 AM in Department U, Michael J. Convey, Presiding; Order to Show Cause Re: (Sanctions for Plaintiff's Failure to Appear at CMC) - Held[+] Read More [-] Read Less
Docketat 08:30 AM in Department U, Michael J. Convey, Presiding; Hearing on Motion to be Relieved as Counsel - Held - Motion Granted[+] Read More [-] Read Less
DocketMinute Order ( (Hearing on Motion to be Relieved as Counsel; Order to Show Ca...)); Filed by Clerk[+] Read More [-] Read Less
DocketOrder Granting Attorney's Motion to Be Relieved as Counsel-Civil[+] Read More [-] Read Less
DocketDeclaration (Re: Order to Show Cause); Filed by Melinda Miller-Hoxie (Plaintiff)[+] Read More [-] Read Less
DocketMotion to Be Relieved as Counsel[+] Read More [-] Read Less
DocketRequest for Entry of Default / Judgment; Filed by Melinda Miller-Hoxie (Plaintiff)[+] Read More [-] Read Less
DocketNotice of Rejection Default/Clerk's Judgment (1) SECTION 1A DEFECTIVE. THE COMPLAINT WAS FILED ON DECEMBER 28, 2017. NTO MARCH 12, 2018. 2) SECTION 6B BLANK. THIS IS REQUIRED. YOU MUST LIST THE NAME AND ADDRESS OF THE PERSON THAT WAS SENT THE REQUEST FOR ENTRY OF DEFAULT.); Filed by Clerk[+] Read More [-] Read Less
DocketProof of Service-By Mailing; Filed by Melinda Miller-Hoxie (Plaintiff)[+] Read More [-] Read Less
DocketDeclaration re: Due Diligence; Filed by Melinda Miller-Hoxie (Plaintiff)[+] Read More [-] Read Less
DocketProof of Service of Summons and Complaint; Filed by Melinda Miller-Hoxie (Plaintiff)[+] Read More [-] Read Less
DocketDeclaration; Filed by Melinda Miller-Hoxie (Plaintiff)[+] Read More [-] Read Less
DocketSummons; Filed by Melinda Miller-Hoxie (Plaintiff)[+] Read More [-] Read Less
DocketComplaint; Filed by Melinda Miller-Hoxie (Plaintiff)[+] Read More [-] Read Less
DocketCivil Case Cover Sheet; Filed by Melinda Miller-Hoxie (Plaintiff)[+] Read More [-] Read Less
DocketNotice of Case Management Conference; Filed by Clerk[+] Read More [-] Read Less
Case Number: ****6667 Hearing Date: January 25, 2021 Dept: U
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT
MELINDA MILLER-HOXIE, an individual,
TYKISHA STANFORD, an individual; ASIA STANFORD, an individual; ANTHONY STANFORD, an individual; THE SUITES, a California corporation; TRES FORTE, a California corporation; ROCKSTONE CONSTRUCTION MANAGEMENT, a California corporation; and DOES 1 – 100, inclusive,
) ) ) ) ) ) )
CASE NO: ****6667
[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO VACATE DISMISSAL
January 25, 2021
On December 28, 2017, Melinda Miller-Hoxie (Plaintiff) filed a complaint against Tykisha Stanford, Asia Stanford, Anthony Stanford, The Suites, Tres Forts, Rockstone Construction Management, and Does 1 through 100, alleging claims for: (1) fraud; (2) conspiracy; (3) breach of contract; and (4) unfair business practices.
Plaintiff filed a conditional Notice of Settlement on July 16, 2019 stating that a settlement agreement would be completed by August 29, 2019. No settlement agreement was filed by this date. Consequently, on October 23, 2019, the Court dismissed this action without prejudice pursuant to California Rules of Court, rule 3.1385.
On April 27, 2020, Plaintiff filed this motion to vacate this action’s dismissal.
Defendants have filed no opposition.
II. LEGAL STANDARD
"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(b).) Application for such relief should be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (Ibid.) This remedial statute to be “applied liberally” in favor of relief if the opposing party will not suffer prejudice. (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 24.)
An affidavit must be submitted by the attorney attesting to the reason for the mistake, inadvertence, surprise or excusable neglect. (Jerry’s Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1070.) The range of attorney conduct for which relief can be granted pursuant to the mandatory provision under the statute governing relief . . . dismissal is broader than that in the discretionary provision, and includes inexcusable neglect. (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) In determining whether an attorney's mistake or inadvertence was excusable neglect warranting discretionary relief from judgment, the court inquires whether a reasonably prudent person under the same or similar circumstances might have made the same error. (Minick, supra, at 24.)
Statutory amendment requiring relief from judgment where attorney neglect caused dismissal is intended to reach only those dismissals which occur through failure to oppose a dismissal motion and does not apply to actions dismissed for delay in prosecution. (Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, 1814.)
Plaintiff moves to vacate the Court’s October 23, 2019 dismissal on the grounds that Plaintiff’s counsel, Michael Steiniger (Steiniger), inadvertently failed to calendar the Order to Show Case regarding dismissal and, thus, did not appear for the hearing. (Steiniger Decl., ¶ 5.)
Steiniger states a settlement agreement was reached between the parties on August 19, 2019 and includes a copy of it as Exhibit A. After notice of this settlement was given to the Court, the Court issued an Order to Show Cause re: Dismissal (Settlement) and set the matter for hearing on August 30, 2019. There were no appearances at the August 2019 hearing so the Court continued the hearing to October 23, 2019 and gave specific notice that, if the parties did not dismiss the case in connection with the settlement, the Court would do so. (August 30, 2019 Minute Order.) The Order to Show Cause was mailed to Steiniger. No one appeared at the October 23, 2019 hearing, so consistent with its prior order, the Court dismissed the action without prejudice. (October 23, 2019 Minute Order.) Again, the Court’s Minute Order was promptly served on Steiniger.
Steiniger declares that Defendant Tykisha started making payments pursuant to the settlement agreement in August and November 2019, but then failed to tender payment in February 2020. (Id., ¶¶ 2, 4.) Although he had notice of the dismissal in October 2019 and admits that the default on the settlement agreement occurred in February 2020, Plaintiff made no effort to seek relief from the dismissal until April 2020 by filing a motion on April 27, 2020 – four days after the six-month deadline had expired.
The Court notes that the October 23, 2019 hearing was not the first time Steiniger failed to appear. He also failed to appear on February 14, 2019 and again on August 30, 2019 for a hearing after the Notice of Settlement was filed. Moreover, this is not even the first time Steiniger has offered a failure to calendar the hearing as the reason for not appearing in court. On November 26, 2018, Steiniger submitted a declaration claiming the same excuse for failing to appear for a September 25, 2018 hearing. A reasonably prudent person would not make the same error twice in the same action after already exhibiting a pattern of nonappearance.
Therefore, Plaintiff’s motion to vacate the dismissal is not well-taken for several reasons. First, it was not filed within a reasonable time, nor within the statutory six-month period. The motion having been filed after the six-month deadline, the Court denies the motion as untimely. Second, the motion requests relief on the ground that the dismissal was entered as a result of mistake, inadvertence, surprise or excusable neglect. As noted above, Plaintiff’s failure to calendar hearings was not an excusable one-time mistake but rather an unexplained pattern. Further, Plaintiff exercised no diligence in seeking relief, making no motion after notice of the dismissal nor even seeking to set aside the dismissal promptly after Defendant’s default on the settlement agreement.
For the foregoing reasons, Plaintiff’s motion to vacate the dismissal of this action is DENIED.
Plaintiff is ordered to give notice of the Court’s ruling.
DATED: January 25, 2021
Hon. Theresa M. Traber
Judge of the Superior Court