2018-00224971-CU-BC

Maurice R. Nash vs. Collegiate Housing Services

Nature of Proceeding: Motion to Set Aside Dismissal

Filed By: Nash, Maurice R.

Plaintiff in pro per Maurice R. Nash’s (“Plaintiff”) motion to set aside dismissal pursuant to CCP § 473(b) is DENIED.

The Court notes defendant Collegiate Housing Services’ (“Defendant”) objection regarding timely service of the motion. However, as Defendant substantively opposed the motion, Defendant has suffered no prejudice from the untimely service.

Plaintiff filed this action against Defendant on January 8, 2018, regarding her tenancy and eviction from Defendant’s property. Defendant demurred to the complaint. On April 24, 2018, the Court sustained Defendant’s demurrer as to Plaintiff’s entire complaint with leave to amend. Plaintiff was ordered to file an amended by May 4, 2018. Plaintiff failed to file an amended complaint and Defendant moved to dismiss for failure to amend. On June 27, 2018, after hearing oral arguments from both parties, the Court granted Defendant’s motion to dismiss with prejudice.

At the hearing, Plaintiff claimed she discovered the hearing by happenstance when she was attempting to file other documents with the Court. Plaintiff confirmed her mailing address was the same one as those on Defendant’s various Proofs of Service and also confirmed her email address was correct. Plaintiff then claimed she checks her mail every 10 days, but never received any documents regarding the demurrer, the Court’s Order to amend the Complaint, or the motion to dismiss. She also claimed she did not have access to her email account. The Court informed Plaintiff if she wanted to set aside the dismissal she could do so by providing proof of her inability to access her email and documents supporting her claim that mail was not being delivered to her. (Asatourian Decl. ¶ 17.)

On June 18, 2018, the Court entered an Order dismissing Plaintiff’s action with prejudice.

Plaintiff now moves to set aside the dismissal pursuant to CCP § 473(b). Plaintiff contends she was “taken by surprise” when she learned her case had been dismissed. Plaintiff has submitted her declaration in support, wherein she declares “it is not uncommon for [her] to find mail in [her] box that belongs to adjoining boxes, and for them to receive mail belonging to me.” (Nash Decl. ¶ 2.) She declares “[i]n the event that I am expecting something important, I will have the postal worker check the surrounding boxes to make sure my mail wasn’t placed in the wrong box, however I

was not expecting defendant’s demurrer in the mail.” (Nash Decl. ¶ 3.) Plaintiff continues, “In any event, I never received the demurrer, and never knew of the hearing date.” (Nash Decl. ¶ 5.) She concludes, “Had I known about it, I would have, upon receiving leave to amend, would have served and filed the proposed amended complaint attached as Exhibit A.” (Nash Decl. ¶ 6.) Plaintiff also provides a letter from the US Postal Service, which states: “[Ms. Nash] stated she did not receive all of her mail in her PO Box and believes some was misdelivered.”

Code of Civil Procedure section 473(b) provides that “[t]he court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order or other proceeding. . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

The trial court has discretion under section 473(b) based on its evaluation of the nature of the mistake or error alleged and the justification proffered for the conduct that occurred. “The general underlying purpose of section 473(b) is to promote the determination of actions on their merits.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838; accord, Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 255-256 [“‘It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits.’ [Citation.] Thus, ‘the provisions of section 473 of the Code of Civil Procedure are to be liberally construed and sound policy favors the determination of actions on their merits.'”].) (Austin v. Los Angeles Unified School District (2016) 244 Cal. App. 4th 918, 928.)

Plaintiff has failed to provide sufficient evidence constituting mistake, inadvertence, surprise, or excusable neglect warranting relief under § 473(b). Her declaration and the accompanying letter from the US Postal Service do not confirm that Plaintiff’s mail was misdelivered. Even if the declaration evidenced Plaintiff’s mail was misdelivered, Plaintiff’s declaration only addresses the demurrer. Plaintiff’s declaration makes no mention as to the reason she did not purportedly receive notice of the motion to dismiss. Further, Evidence Code § 641 states that mail is presumed to be delivered in the ordinary course of mail if it is correctly addressed and properly mailed. Here, as evidenced by the Proofs of Service for Defendant’s various motions and notices, and Plaintiff’s verbal confirmation in Court on June 27, 2018, Defendant mailed all documents to Plaintiff’s correct mailing address via first class mail, with postage prepaid. (Asatourian Decl. ¶¶ 13, 15, 18-20.) Additionally, none of the mail has ever been returned to Defendant’s counsel. (Asatourian Decl. ¶ 23.) Moreover, as seen by Plaintiff’s instant motion, she continues to use the same PO Box despite her contention that she has problems receiving mail at this address.

In addition, throughout the course of this action, Defendants has also emailed Plaintiff courtesy copies of Defendant’s moving papers, notices of rulings, and notifications of upcoming demurrer and motion to dismiss hearings. (Asatourian Decl. ¶¶ 10, 11, 13, 15, 16, and 18-20.) Defendant has not received any emails or notifications indicating emails to Plaintiff were not being successfully delivered. (Asatourian Decl. ¶ 23.) Plaintiff has failed to present any evidence that she has not received these various emails. Further, Plaintiff verbally confirmed in Court on June 27, 2018, that her email address is correct.

Based on the foregoing, the Court finds Plaintiff has failed to demonstrate any viable

ground on which to set aside the order dismissing the action with prejudice. Plaintiff’s motion is DENIED.

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