Case Number: BC558766 Hearing Date: March 08, 2018 Dept: 92

BRADLEY DJUKICH,

Plaintiff,

vs.

KELLY FLOOK, et al.,

Defendants.

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Case No.: BC558766

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO VACATE DISMISSAL

Dept. 92

1:30 p.m.

March 8, 2018

Plaintiff Bradley Djukich’s Motion to Vacate Dismissal is GRANTED. The Court sets the matter for trial on ____6-5-18 at 8:30 am________ with a Final Status Conference set for ___5-22-18 at 10 am________. All discovery cut-offs shall be pursuant to the new trial date.

On July 20, 2017, pursuant to an ex parte application to continue trial, the Court set trial for November 28, 2017, with an FSC set for November 14, 2017, and the discovery cut-off to be calculated based on the new date.

On October 3, 2017, the Court heard and granted another ex parte application to continue trial. The Court set trial for February 7, 2018, with an FSC set for January 26, 2018, and the discovery cut-off to be calculated based on the new date.

Due to clerical error, on November 28, 2017, the Court called the matter for trial. As neither party was present, the Court ordered the action dismissed.

Plaintiff’s counsel declares he never received notice of the dismissal, and first learned of the dismissal shortly before January 26, 2018, while he was preparing for the Final Status Conference, which he believed was still on calendar. (Glickman Decl. ¶ 5.)

On January 26, 2018, Plaintiff moved ex parte to vacate the dismissal. The Court denied the motion and ordered Plaintiff to bring a noticed motion. Plaintiff filed the instant motion on February 1, 2018.

In opposition, Defendant argues Plaintiff is not entitled to relief pursuant to CCP § 473(b), because Plaintiff has failed to provide either a declaration stating that the dismissal was due to attorney error or a declaration stating the dismissal was due to Plaintiff’s excusable negligence, inadvertence, mistake, or surprise. Defendant’s opposition ignores that Plaintiff never claims to be seeking relief pursuant to CCP § 473(b), because the dismissal was not due to an error on the part of Plaintiff or Plaintiff’s counsel; it was due to an error on the part of the Court.

Instead, Plaintiff seeks equitable relief pursuant to the concept of extrinsic mistake. “[E]xtrinsic mistake is broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. Extrinsic mistake is found when [among other things] . . . a mistake led a court to do what it never intended.” (Bae v. T.D. Service Co. (2016) 245 Cal.App.4th 89, 97-98 [internal quotations omitted].)

The Court agrees this is a clear example of extrinsic mistake. Plaintiff’s case should not have been called on November 28, 2017, as the trial had already been continued to February 7, 2018. Additionally, the Court has no record—and Defendants have provided none—suggesting the Court sent notice of its dismissal of the case. Accordingly, there is no evidence contradicting Plaintiff’s statement that he learned of the dismissal in January, and it is apparent Plaintiff reacted swiftly to seek relief once he learned of the dismissal.

Plaintiff’s motion to vacate the dismissal is therefore GRANTED.

In opposition, Defendants also argue they are entitled to sanctions pursuant to CCP § 473(c), which states, “Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following: (A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.” As noted, the Court is not granting relief pursuant to the provisions of CCP § 473, and there is no offending attorney or party. Defendants’ request for a penalty is therefore DENIED.

Finally, the parties dispute what to do regarding discovery. Pursuant to the previous ex parte order, the discovery cut-off was set to be calculated based off of the February 7, 2018, trial date.

Defendants argue discovery should remain open, and the cut-off date should be calculated off of any new trial date. Plaintiff requests that discovery be deemed closed, except for (1) Expert witness discovery relating to medical reports; (2) Subpoenas for Plaintiff’s medical records; and (3) One set of interrogatories for each party limited to the ‘update’ interrogatory.

Plaintiff’s proposed discovery seems entirely arbitrary. It is not clear why the Court would deem discovery closed, except for a small number of things that Plaintiff alone has deemed still outstanding.

Accordingly, discovery cut-off dates are to be calculated based on the new trial date.

Moving party to give notice.

Dated this 8th day of March, 2018

Hon. Marc Gross

Judge of the Superior Court