Case Number: BC607854 Hearing Date: April 04, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

Hortencia Hernandez,

Plaintiff,

v.

Kerry Lynch, et al.,

Defendants.

Case No.: BC607854

Hearing Date: April 4, 2018

[TENTATIVE] order RE:

motion for relief from involuntary dismissal

Plaintiff Hortencia Hernandez (“Plaintiff”) filed this action against Defendant Kerry Lynch (“Defendant”) on January 21, 2016. The Final Status Conference was held on July 6, 2017, where Plaintiff’s counsel appeared. Upon reviewing the file, the Court found that no proof of service on the Defendant had been filed with the Court. The Court then set an Order to Show Cause hearing for failure to serve or prosecute and stated: “If proof of service is not filed prior to 10/05/17 this case will be dismissed for failure to prosecute.” (Minute Order, July 6, 2017, at pg. 1.) The Court also set a trial setting conference for the same date of October 5, 2017.

Plaintiff filed the proof of service of process on September 25, 2017. On the same day of the filing, Plaintiff’s counsel states that he personally provided a copy of the proof of service directly to Department 97. (Lauria Decl., at ¶ 8.) Counsel asked the clerk in Department 97 if he needed to appear at the OSC re Dismissal, and the clerk told him that his presence would not be necessary because the OSC re Dismissal would be taken off calendar. (Ibid.)

At the OSC re Dismissal hearing on October 5, 2017, the Court entered the following order: “There are no appearances by or for any party nor any communication with the Court as to why there are no appearances this date. Accordingly, as to any remaining parties and causes of action, the case is dismissed without prejudice.” (Minute Order, October 5, 2017 at pg. 1.)

Coincidentally, on the afternoon of October 5, 2017, Defendant filed an answer to the complaint. On November 28, 2017, Defendant filed three motions to compel. On December 6, 2017 court staff called Defense counsel and informed Defense counsel that the case had been dismissed. Defense counsel then cancelled all three motions to compel.

On March 5, 2018, Plaintiff filed this instant motion for relief from involuntary dismissal. Plaintiff moves pursuant to CCP §473(b) on grounds that the Court improperly entered the dismissal after proof of service had been correctly filed. Plaintiff’s counsel includes an affidavit declaring what actions he took to comply with the Court’s July 6, 2017 Order. (See Lauria Decl.)

Defendant opposes this motion on several grounds: (1) discretionary relief is not justified because Plaintiff’s counsel’s failure to attend the OSC re Dismissal was not reasonable; (2) discretionary relief is also not justified because Plaintiff failed to bring this motion in a “reasonable” amount of time; and (3) Mandatory relief under CCP § 473(b) is not appropriate because Plaintiff’s counsel does not properly state that the dismissal was entered as a result of the fault of counsel.

The Court finds that the October 5, 2017 dismissal was improper and therefore grants Plaintiff’s motion to vacate. The Court also finds that this motion is timely as Plaintiff filed the motion within 6 months of the dismissal.

A dismissal cannot occur unless and until two years have elapsed since the filing of the complaint. As noted in Code of Civil Procedure, § 583.420(a)(1):

(a) The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred:

(1) Service is not made within two years after the action is commenced against the defendant….

In addition, the Court of Appeals noted in Hawks v. Hawks (2006) 141 Cal.App.4th 1345, 1437, that “a delay of less than two years in service of the summons and complaint is not a ground for dismissal under [(§§ 583.410, 583.420].”

Here, the complaint was filed in January of 2016, and the OSC re Dismissal was held in October of 2017. As such, the OSC re Dismissal was held before two years had elapsed since the filing of the complaint. Dismissal on the grounds of failure to serve was therefore improper, and the dismissal must be set aside.

Defendant argues that the mandatory prong of § 473 should not apply because Plaintiff’s counsel did not “fall on his sword” and admit fault. However, the Court notes that it was not the fault of Plaintiff’s counsel that caused this dismissal. The Court must fall on its own sword and admit that this error occurred as a result of inadvertence and mistake by the Court. Therefore, Plaintiff’s counsel need not concede any mistake on his part.

The July 6, 2017 Order clearly stated that the matter would be dismissed only if proof of service was not filed by the October 5, 2017 OSC re Dismissal hearing date. Plaintiff timely filed the proof of service prior to the October 5, 2017 OSC hearing. Further, the Court’s clerk informed Plaintiff’s counsel that he did not need to appear at the hearing. Plaintiff’s counsel reasonably relied on the Court order and the Court’s staff about the status of the case. The Court agrees with Defendant that it may have been poor form for Plaintiff’s counsel not to appear at the October 5, 2017 hearing given that Plaintiff’s filing of the proof of service did not address the trial setting that was to take place on the same date of October 5, 2017. However, failure to appear at a trial setting conference is not a ground for dismissing an action. The Court finds that Plaintiff’s counsel reasonably relied on the representations of the Court that the action would not be dismissed if proof of service was filed prior to the October 5, 2017 OSC. Because the October 5, 2017 dismissal was entered in error and in contravention of CCP § 583.420(a)(1), the Court must set aside the dismissal, and the Court thus need not address Defendant’s arguments relating to the discretionary prong of CCP § 473.

Finally, Defendant asserts that Defendant is entitled to costs and fees that Defendant incurred as a result of the entry of dismissal. Under CCP § 473(b), 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.”

Here, any prejudice to Defendant caused by the erroneous dismissal of the action on October 5, 2017 was minimal. Defendant argues that Defendant suffered prejudice in the filing of the motions to compel on November 28, 2017 because Defendant would not have filed the motions had Defendant known about the dismissal. However, the attorney’s fees for drafting those motions have not been wasted. Defendant can re-file those motions if the requested discovery remains outstanding, and Defendant can still seek sanctions, if appropriate, to recover fees incurred as a result of Plaintiff’s failure to respond. Therefore, Defendant has other, more proper, avenues for recovering his attorney’s fees for the motions to compel.

The only potential costs that Defendant may not be able to recover are the three filing fees for the motions to compel totaling $180. Defendant canceled the motions after learning that the case had been dismissed. If Defendant still wishes to pursue the motions to compel, then Defendant may use the same CRS reservation numbers to avoid having to pay the three filing fees a second time. To use the same CRS reservations numbers for which Defendant has already paid, Defendant will have to contact the Court’s Judicial Assistant to reschedule the old CRS reservations.

CONCLUSION

For the foregoing reasons, the Court’s October 5, 2017 order dismissing Plaintiff’s action is vacated. The Court hereby sets a trial setting conference for April 20, 2018 at 8:30 am at the Court’s new location, effective April 16, 2018: 312 North Spring Street, Dept. 5, Los Angeles, CA 90012.

Plaintiff is ordered to provide notice of this order and file proof of service of such within 10 days.

DATED: April 4, 2018 ___________________________

Elaine Lu

Judge of the Superior Court