Case Number: BC466117 Hearing Date: June 16, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

MARGARITA CANO,
Plaintiff(s),
vs.

SUPER COIN LAUNDRY, INC., et al.,
Defendant(s).

Case No.: BC466117

[TENTATIVE] ORDER GRANTING MOTION FOR RECONSIDERATION; REAFFIRMING PRIOR ORDER

Dept. 92
1:30 p.m. — #1936
June 16, 2014

Defendant, Ezra Bekhor’s Motion for Reconsideration is Granted. The prior order setting aside the dismissal, however, is affirmed. The dismissal remains set aside. Defendant is ordered to file a responsive pleading to the complaint within twenty days.

Background Facts
Plaintiff, Margarita Cano filed this action against Defendant, Super Coin Laundry, Inc. on 7/26/11. The case arises out of a slip and fall incident.

On 10/12/12, Plaintiff filed a First Amended Complaint, adding Ezra Bakkor dba Super Coin Laundry as a defendant to the action. On 10/15/12, Plaintiff filed a request for dismissal of Defendant, Super Coin with prejudice. On 10/16/12, the Court entered a dismissal of the entire action with prejudice for failure to file a request for default judgment.

Motion to Set Aside Dismissal
On 2/21/13, Plaintiff filed a motion to set aside the dismissal, setting it for hearing on 3/22/13. On 3/22/13, the Court noted that the case was a personal injury case; the Court therefore took the motion off calendar and ordered Plaintiff to re-notice the motion for hearing in the PI court.

On 7/30/13, Plaintiff re-filed her motion, setting it for hearing on 9/19/13; unfortunately, the Court did not have the motion calendared, and therefore the Court continued the hearing to 10/21/13; Plaintiff’s counsel, however, indicated 10/21/13 was not an available date; the Court therefore ordered Plaintiff to use the on-line reservation system to schedule the motion for the next available hearing date.

Plaintiff then scheduled the hearing on the motion for 12/24/13, but did not file new papers. The Court therefore did not work up the matter, and instructed Counsel to reserve a new hearing date and file new papers.

Plaintiff thereafter scheduled the motion for hearing on 3/14/14, and re-filed the moving papers on 2/03/14. On 3/14/14, the Court granted the motion to set aside dismissal. The motion was premised on three grounds:
Plaintiff’s attorney’s secretary was instructed to file a request for entry of default judgment, but did not do so, because she was in the process of embezzling money from the office; she was later arrested for same, which caused disarray in the office;
Plaintiff attempted to file a request for default judgment when ordered to do so by the Court, but the request was rejected;
Plaintiff discovered, after being ordered to file a request for entry of default judgment against Super Coin, that Super Coin was not the proper defendant, and instead Bekkor was. Plaintiff therefore elected to amend the complaint and dismiss Super Coin, rather than filing a request for default judgment against Super Coin.

Motions for Reconsideration
At this time, Defendant moves for reconsideration of the 3/14/14 order setting aside the dismissal. Defendant contends there are two new facts that justify reconsideration – first, that Plaintiff failed to inform the Court of the three court orders obligating Plaintiff to seek default judgment prior to the time of dismissal of the complaint, and second, that Plaintiff knew she had sued and served the wrong defendant long before he attempted to amend her complaint.

Plaintiff argues neither of the foregoing facts constitute a “new fact,” as these facts were available at the time of the original hearing on the motion to set aside the dismissal. With respect to the first cited fact, the Court agrees – indeed, the Court reviewed its entire file prior to granting the motion to set aside dismissal, and was aware of the orders Defendant contends Plaintiff failed to inform the Court had been made.

With respect to the second cited fact, the Court disagrees. Plaintiff argues Defendant should have presented this fact in connection with the prior hearing. Defendant was not, however, given notice of the motion for reconsideration. Indeed, the motion bore proof of service on:
Super Coin Laundry, Inc.
Howard M. Lee
715 W. Katella Avenue
Anaheim, CA 92802

Super Coin Laundry, Inc., however, is not the defendant against whom Plaintiff is now seeking to proceed. Plaintiff is seeking to proceed against Ezra Bekhor, dba Super Coin Laundry. The Court was not concerned with this failure to serve at the time of the motion for relief from dismissal, as Bekhor had not yet been served with the summons and complaint in the action. A defendant is not entitled to service of moving papers unless and until the defendant has appeared in the action. Plaintiff filed a proof of service of the summons and complaint on Bekhor on 4/21/14; it shows Plaintiff had Defendant served, via substituted service, on 3/21/14.

The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. Gilberd v. AC Transit (1995) 32 CA4th 1494, 1500. Defendant establishes new facts, meaning facts that could not, with reasonable diligence, have been presented in connection with the prior hearing. The motion for reconsideration is therefore granted.

If the statutory requirements for granting reconsideration are not met, the motion for reconsideration should be denied. Conversely, where the requirements are met, reconsideration should be granted. That does not mean, however, that the court must change its mind. Upon reconsideration, it may simply reaffirm its original order. Corns v. Miller (1986) 181 CA3d 195, 202. The Court, therefore, must now turn to the second question – should the Court change its order setting aside the dismissal in light of the new facts before it?

Defendant presents the Declaration of Tim Heffernan in support of the motion for reconsideration. Heffernan is a senior insurance claims examiner for Crusader Insurance Company, Bekhor’s insurance carrier. Hefferman establishes that he sent six letters to Plaintiff’s counsel. The letters are attached to the declaration. The first letter is dated 2/24/11. It indicates Crusader insures “Ezra Bekhor dba Super Coin Laundry.” It indicates Crusader is not authorized to accept service on Bekhor’s behalf, but is investigating the subject claim. Similar letters are dated 1/19/12 and 3/22/12. Additionally, on 4/30/12, Crusader wrote a letter stating:
I have discussed this case with my policyholder who has informed of the following:
He is not Super Coin Laundry, Inc. He is an individual doing business as Super Coin Laundry. He does not know who Howard M. Lee is; he is not the agent for service of process for my policyholder.
Based on the foregoing, it appears that you have served the incorrect party.

The next letter is dated 5/16/12; it appears Crusader and Plaintiff’s attorney’s office had a telephone conversation between 4/30/12 and 5/16/12, as the letter states, “As I advised your assistant in our telephone conversation, I do not have authority to disclose any personal information regarding the insured’s address.” The final letter is dated 6/15/12. It indicates Crusader received certain litigation-related documents in the mail, but is not a party to the lawsuit and does not insure the only named party, Super Coin Laundry, Inc.

The dismissal and related events occurred in October of 2012. Plaintiff’s counsel makes much of the fact that his secretary was involved in illegal activity at the office and was fired in January of 2012. Counsel explains that a number of secretaries were hired, essentially, to “clean up the mess.” He also explains that he handles over a hundred cases, and it was difficult to put the pieces back together after his secretary was fired.

Defendant argues the foregoing was not reasonable, and therefore the order setting aside the dismissal should be vacated. Defendant relies on Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258. Zamora, however, was decided based on the discretionary relief provision of CCP §473(b), as the motion for relief in that case was not accompanied by an attorney affidavit of fault.

In the absence of an “attorney affidavit of fault,” attorney neglect is imputed to the client. If the neglect is “excusable,” the party is excused. If “inexcusable,” the client may have a malpractice action against the attorney, but there is no ground for relief under CCP § 473(b). See Elston v. City of Turlock (1985) 38 C3d 227, 236.

If, however, there is an attorney affidavit of fault accompanying the moving papers, the neglect need not be excusable; the motion must be granted per the mandatory provision of §473(b). See Zamora, supra, at 257. The Court has reviewed the prior motion, and finds that it was based on the attorney affidavit of fault filed by Plaintiff’s attorney, Ameer Shah. Thus, even though the neglect may have been inexcusable, the Court was required to grant the motion per the mandatory provisions in §473(b). Thus, even though the Court grants the motion for reconsideration, the Court also re-affirms its prior order setting aside the dismissal.

Dated this 16th day of June, 2014

Hon. Elia Weinbach
Judge of the Superior Court