VICTOR ALCANTARA VS ALEJANDRO SUAREZ ET AL

Tentative Rulings

Case Number: ****9625    Hearing Date: October 01, 2020    Dept: F47

Dept. F-47

Date: 10/1/20

Case #****9625

MOTION TO SET ASIDE DISMISSAL

Motion filed on 7/9/20.

MOVING PARTY: Plaintiff Victor Alcantara

RESPONDING PARTY: Defendants/Cross-Defendants Alejandro Suarez and Eliseo Quezada

JOINING PARTY: Defendant Bimbo Bakeries USA, Inc.

NOTICE: ok

RELIEF REQUESTED: An order setting aside the dismissal of this action entered on 1/9/20.

RULING: The joinder in the opposition is granted. The motion is denied.

This action arose out of a motor vehicle accident. The action was thought to be settled in November 2018. However, Plaintiff’s counsel admits that after accepting the settlement, Plaintiff became very difficult to communicate with and it took until 10/1/19 for Plaintiff to sign the release/settlement. (Bauman Decl. ¶¶4-5). Plaintiff’s counsel further concedes that the settlement agreement contained an error; however, Plaintiff failed and/or refused to sign a corrected/revised settlement agreement/release. (Bauman Decl. ¶¶6-10). As a result, Defendants filed a motion to dismiss which was unopposed and granted on 1/9/20. Plaintiff has now filed a motion for relief from dismissal under CCP 473(b) on the last day to do so under the 6 month statutory deadline. See Davis (1980) 113 CA3d 892, 901. Plaintiff seeks relief under the discretionary provision of CCP 473(b) and/or alternatively under the mandatory provision of CCP 473(b) based on attorney fault. In the proposed order submitted with the motion, in addition to vacating the dismissal, Plaintiff seeks an order requiring Defendants to honor the release/agreement and to disburse the settlement funds.

CCP 473(b) provides, in relevant part:

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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken…No affidavit or declaration of merits shall be required of the moving party. 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 (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. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.

(emphasis added)

Accepting Plaintiff’s counsel’s declaration of fault regarding his failure to appear at hearings and failure oppose the motion to dismiss, the motion still fails to establish that Plaintiff is entitled to relief under either the discretionary or mandatory provisions of CCP 473(b). The motion is not accompanied by a proposed pleading (i.e., a proposed opposition to the motion to dismiss or a properly executed settlement/release). As such, the motion is not in proper form. Additionally, the Court finds that the dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect. As noted above, Plaintiff’s counsel has admitted that Plaintiff delayed for almost a year before signing the settlement/release and has failed and/or refused to sign a corrected/revised settlement/release. (See Bauman Decl. ¶¶4-10; Motion p.6:21). Further, the motion provides no authority for the proposition that a revised settlement agreement executed by Plaintiff’s counsel (a copy of such revised settlement agreement has not been provided) through a purported oral power of attorney is valid. (See Motion p.5:8-12; Bauman Decl. ¶¶28-30). Although the opposition argues that such an oral power of attorney is not valid, the reply fails to address the issue other than restating that such oral power of attorney was conveyed to defense counsel. (See Opp. p.2:23-p.3:12; Reply p.4:10-14; Bauman Decl. ¶¶28-30). Nor does the motion or reply provide any authority to support the argument that the typographical error in the settlement agreement signed by Plaintiff does not invalidate the agreement. (See Motion p.6:19-20; Reply p.6:17-18).

Based on the foregoing, the motion is denied.