Case Number: BC628098 Hearing Date: April 05, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

Manuel A. Lopez, et al.,

Plaintiffs,

v.

Christian Pinot, et al.,

Defendants.

Case No.: BC628098

Hearing Date: April 5, 2018

[TENTATIVE] order RE:

plaintiffs’ motion for relief from involuntary dismissal

Plaintiffs Manuel A. Lopez and Rosa M. Hernandez (“Plaintiffs”) filed this action against Defendants Christian Pinot, Ivan Pinto, and Karla Pinto (“Defendants”) on July 22, 2016. On the date set for trial, January 22, 2018, Plaintiffs did not appear and did not communicate with the Court as to why there was no appearance. Because of the failure to appear, the Court dismissed the action under CCP § 581(b)(3).

On March 12, 2018, Plaintiffs filed this instant motion for relief from involuntary dismissal. Plaintiffs move pursuant to CCP §473(b) on grounds that the Court improperly entered the dismissal, and that Plaintiffs’ counsel failed to attend the hearing due to his mistake and inadvertence. Plaintiffs have timely brought this motion within six months of dismissal, and Plaintiffs’ counsel has properly included a declaration admitting the dismissal was entered because of his mistake.

Plaintiffs contend that the dismissal itself was improper because Plaintiffs have three years to serve the complaint upon Defendants. However, the Court did not dismiss this action for failure to prosecute or serve under CCP § 583.210 or CCP § 583.250. Instead, the Court dismissed the action when Plaintiff failed to appear at the trial. Under CCP § 581(b)(3), an action may be dismissed “[b]y the court, without prejudice, when no party appears for trial following 30 days’ notice of time and place of trial.” Therefore, the dismissal was properly entered.

Plaintiffs also argue that the dismissal should be vacated under CCP § 473(b), because of Plaintiffs’ attorney’s mistake or inadvertence. Plaintiffs’ counsel states that he did not attend the hearings for the FSC or trial due to a calendaring error; he failed to record the dates of either hearing. (Janfaza Decl., at ¶ 14.) Counsel’s declaration sufficiently demonstrates that the dismissal was entered due to his mistake. Accordingly, the Court’s January 22, 2018 order dismissing Plaintiffs’ action is vacated pursuant to CCP §473(b).

The Court notes that Plaintiffs filed the complaint on July 22, 2016, and there was no activity in the case since then until the dismissal of the case on January 22, 2018. Plaintiffs have not explained why they have not filed proof of service of process in the twenty months since the filing of the complaint. In the moving papers, Plaintiffs argue that Plaintiffs have three years to file the complaint under CCP § 583.210. Pursuant to CCP § 583.210 and CCP § 583.250, dismissal of the action is mandatory, and the Court must dismiss the action if Plaintiff fails to effect service of process within three years of filing of the complaint. However, under CCP § 583.410, the Court has discretion to dismiss the complaint for failure to prosecute if “[s]ervice is not made within two years after the action is commenced against the defendant.” (CCP § 583.420, subd. (a)(1).) Thus, unnecessary delay in service may cause the Court, in its discretion, to dismiss the action after two years have elapsed since the filing of the complaint. (CCP § 583.410, subd. (a).)

The Court sets an OSC re Dismissal for Failure to Serve for July 22, 2019 at 8:30 am. The Trial is reset to January 8, 2019 at 8:30 am, and the Final Status Conference is reset to December 21, 2018 at 10:00 am. All discovery and motion cut off dates will follow the new trial date.

For all future hearings and trial dates after April 13, 2018, the parties are ordered to appear at the Court’s new location effective April 16, 2018: 312 North Spring Street, Dept. 5, Los Angeles, CA 90012.

Plaintiffs are ordered to provide notice of this order.

DATED: April 4, 2018 ___________________________

Elaine Lu

Judge of the Superior Court