Case Number: BC688996 Hearing Date: June 12, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

CARLOS MANUEL MICHEL-JIMENEZ,

Plaintiff(s),

vs.

HANSEN STEEL SERVICES LLC et al.,

Defendant(s).

Case No.: BC688996

[TENTATIVE] ORDER GRANTING MOTION TO VACATE DISMISSAL

Dept. 3

1:30 p.m.

June 12, 2019

On January 5, 2018, plaintiff Carlos Manuel Michel-Jimenez (“Plaintiff”) filed this action against defendants Hansen Steel Services LLC (“Hansen”), Labor Ready Inc (“Labor Ready”), Peopleready (“Peopleready”) and Does 1 through 50 alleging cause of action for negligence and negligent training and supervision.

On September 20, 2018, Hansen filed a demurrer to the complaint. Plaintiff failed to file an opposition. Plaintiff appeared at the November 15, 2018 hearing on the demurrer through an appearance attorney. At the demurrer hearing, the Court sustained Hansen’s demurrer to the first cause of action with leave to amend and the second cause of action without leave to amend.

Plaintiff failed to file a First Amended Complaint, and on 3/06/19 the Court granted Defendants’ ex parte applications to dismiss the case and ordered the case dismissed as against Hansen and Peopleready (the Court had previously sustained Co-Defendant, Peopleready’s demurrer without leave to amend). On 4/08/19, at an OSC, the Court dismissed Labor Ready, Inc. without prejudice because Plaintiff conceded it was the same entity as Peopleready. Thus, as of 4/08/19, the entire case was dismissed.

Plaintiff, on 4/08/19, made an ex parte application to vacate the dismissal of the complaint against Hansen only. The Court denied the application. On 4/10/19, Plaintiff filed the instant noticed motion to vacate the dismissal of Hansen and permit Plaintiff to file a First Amended Complaint. Plaintiff contends the failure to timely file the FAC was the result of a calendaring error on the part of his attorney, and thus the dismissal was entered as a result of mistake, inadvertence, and/or neglect.

Hansen argues the mandatory relief provision of CCP §473(b) does not apply to dismissals entered due to a failure to timely file an amended complaint after a demurrer is sustained. Hansen relies on Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603 to support its position. Leader is a very complicated case. Essentially, the plaintiff’s operative complaint was his third amended complaint, and it was filed after the case had gone up and down to the court of appeals. The trial court sustained a demurrer to the third amended complaint with leave to amend, and the plaintiff failed to timely amend. The parties then appeared at a subsequent status conference, and the plaintiff brought a purported fourth amended complaint to the status conference. The trial court told the parties it believed the plaintiff needed to file a noticed motion to amend, as the time to do so had already run out. The plaintiff then filed a motion for leave to amend, and the defendant filed a motion to strike the purported fourth amended complaint; the two motions were heard concurrently. The trial court granted the motion to strike the purported fourth amended complaint and denied the motion for leave to amend, finding the plaintiff had multiple opportunities to act timely, and failed at every possible time to do so.

The plaintiff appealed the ruling, and the court of appeals affirmed. The court of appeals noted, importantly, that any argument under CCP §473(b) was premature, as the plaintiff made the §473(b) arguments in connection with his argument that the trial court should NOT dismiss the action; the court of appeals correctly noted that a §473(b) motion lies if and only if the case has already been dismissed. The procedural posture of this case, therefore, is different; in this case, the Court has already entered a dismissal of the action.

Notably, the court of appeals in Leader did provide an extensive analysis of whether and when §473(b)’s mandatory relief provision applies. It indicated a motion for mandatory relief from dismissal would not lie under the circumstances. Specifically, the court of appeals held, “To this list we add discretionary dismissals based on the failure to file an amended complaint after a demurrer has been sustained with leave to amend, at least where, as here, the dismissal was entered after a hearing on noticed motions which required the court to evaluate the reasons for delay in determining how to exercise its discretion. Like discretionary dismissals for delay in prosecution, “‘virtually all such dismissals are attorney caused and such a construction would result in a disfavored repeal of the discretionary dismissal statute[s] by implication.’”

In this case, the Court did not enter a dismissal after a hearing on noticed motions. Instead, the Court entered the dismissal on ex parte application. When Leader is read in its entirety, it appears to support, rather than criticize, the availability of relief under these circumstances. The Court finds the dismissal of this akin was “akin to entry of default judgment,” such that the mandatory relief provision of §473(b) applies.

Because the mandatory provision applies, Defendant’s arguments concerning whether or not Plaintiff’s attorney’s neglect was excusable are irrelevant. Plaintiff’s attorney admits the dismissal was entered as a result of his neglect; he failed to calendar the date the amended complaint was due. While the Court tends to find Plaintiff’s attorney’s explanation inexcusable (Counsel declares, in part, that he thought the appearance attorney would draft the amended complaint; the Court is not aware of a practice where appearance attorneys, hired by their nature solely to appear, then also perform substantive tasks), the explanation need not be excusable in order to provide for relief.

The Court also notes Defendant argues the proposed amended complaint continues to fail to state a cause of action against it. The Court is not inclined to consider the merits of the amended complaint at this time. Defendant is, of course, welcome to attack the amended complaint if it believes the amended complaint remains deficient.

The motion for relief is granted. Plaintiff is ordered to file a separate copy of the amended complaint within five days. Defendant is ordered to file a responsive pleading to the first amended complaint within thirty days.

Plaintiff is ordered to give notice.