2009-00035113-CU-PA

Cathy Acosta vs. Linda M. Little
Cathy Acosta vs. Linda M. Little

Nature of Proceeding: Motion to Vacate Judgment

Filed By: Miller, Jr., Russell W.

Plaintiff Cathy Acosta’s motion to vacate judgment pursuant to CCP § 473(b) is
denied.

On April 18, 2014, the presiding judge entered an order vacating Plaintiff’s motion to
set the trial date on the basis that the action had been dismissed on April 9, 2014, by
this Court when it granted Defendant’s unopposed motion to dismiss pursuant to CCP
§§ 583.310, 583.360 for failure to bring the action to trial within five years. This Court
granted that motion after determining that the five year statute ran on February 22,
2014. While Plaintiff seeks relief from “the judgment rendered against her on April 18,
2014, in Department 47”, no judgment was rendered by the presiding judge on April
18. Rather, the presiding judge simply dropped Plaintiff’s motion to set the trial date
after finding that this Court had already dismissed the action. Plaintiff presumably
seeks to set aside the April 18, 2014, order dropping her motion to set trial and this
Court’s order dismissing her action.

At the outset, the Court rejects Defendant’s claim that the motion was untimely served.
The motion was served by mail on April 25, 2014 which provided 16 court days and 6
calendar days notice. This was sufficient pursuant to CCP § 1005(b).

Plaintiff argues that the dismissal entered against her should be set aside pursuant to
CCP § 473(b) because there were a number of delays that made bringing the matter to
trial impossible through no fault of Plaintiff or Plaintiff’s counsel. Plaintiff’s counsel
indicates that his email accounts were hacked in 2011 resulting in loss of data and
calendaring errors. Counsel also states that he had a motion to set this matter for trial
scheduled to be heard with the presiding judge which he contends was a response to
Defendant’s motion to dismiss heard by this Court (which was unopposed). He faults
this Court for ruling on the motion to dismiss as he contends that any issues regarding
whether the five year statute to bring the matter to trial should have been heard by the
presiding judge in connection with Plaintiff’s motion to set the matter for trial.

The motion is denied. Here, even assuming for the purposes of argument that Plaintiff
has shown that the dismissal was taken against her as the result of mistake,
inadvertence, surprise or excusable neglect, the motion would have to be denied.
Indeed, the express language of CCP § 473(b) provides: “However, this section shall
not lengthen the time within which an action shall be brought to trial pursuant to
Section 583.310. (CCP § 473(b).) This Court already concluded that Section
583.310’s five year period ran on February 22, 2014. Thus, the motion must be denied
because granting the requested relief would lengthen the time within which Plaintiff
could bring the action pursuant to Section 583.310.

In any event, Plaintiff failed to demonstrate that any order in this action was taken
against her as the result of mistake, inadvertence, surprise or excusable neglect.
Indeed, the instant matter was dismissed by this Court because the Court granted
Defendant’s motion to dismiss for failure to bring the matter to trial within five years, a
motion which Plaintiff did not oppose. While Plaintiff also had a motion to set the
matter for trial scheduled to be heard on a date after the motion to dismiss was
scheduled, his apparent explanation for not opposing the motion to dismiss does not demonstrate a basis for relief. Indeed he declares that the presiding judge “did
specifically tell the parties the briefing schedule was to determine whether the time
could or would be tolled. Plaintiff reasonably relied on this briefing schedule to
address all matter before any specific department of the Sacramento Superior Court
inasmuch as all parties were then and now before the Presiding Judge. All matters
were to be heard before the Presiding Judge as being addressed in the briefing
schedule. The Law and Motion Court precluded this understanding. Plaintiff believes
the Law and Motion Court should have consolidated all motions of all pending issues
to the Presiding Judge inasmuch as the Presiding Judge had taken the issue under a
briefing schedule and ruling long before the Law and Motion Court was to have made
any ruling.” (Miller Decl. ¶¶ 21-23.)

Plaintiff’s counsel’s declaration does not show that Plaintiff’s failure to oppose
Defendant’s motion to dismiss was the result of mistake, inadvertence, surprise or
excusable neglect. First, there is no indication in the presiding judge’s order granting
her OST for the motion to set the matter for trial indicating, as counsel states in his
declaration, that the briefing schedule for the motion to set the matter for trial was to
determine whether the five years statute was tolled. More importantly, Plaintiff never
raised any of the concerns regarding having any tolling issues related to the five year
statute set forth in CCP § 583.310 consolidated so that everything would be heard by
the presiding judge in connection with her motion to set the matter for trial in response
to Defendant’s motion to dismiss, she simply failed to oppose it. Plaintiff’s counsel’s
declaration shows at most a choice not to oppose Defendant’s motion to dismiss
based on his unexpressed understanding that this Court should have not considered
the motion while Plaintiff’s motion to set the matter for trial was pending with the
presiding judge. “Conduct falling below the professional standard of care, such as
failure to timely object or properly advance an argument, is therefore not excusable”
under the discretionary provisions of CCP § 473. (Garcia v. Hejmadi (1997) 58
th
Cal.App.4 674, 681-682.) This Court cannot conclude that the dismissal taken
against Plaintiff was the result of mistake, inadvertence, surprise or excusable neglect.

Given the above, the Court need not consider Defendant’s additional arguments raised
in opposition, specifically, the arguments related to whether there was a basis to toll
CCP § 583.310’s five year statute.

The motion is denied.

Defendant’s request for judicial notice is granted.

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by Local Rule 1.06(D). Plaintiff’s counsel is ordered to notify Defendant’s
counsel immediately of the tentative ruling system and to be available at the hearing,
in person or by telephone, in the event Defenant’s counsel appears without following
the procedures set forth in Local Rule 1.06(B).

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or other notice is required.