Case Number: KC065297 Hearing Date: February 09, 2015 Dept: J
Re: Jose Torres, et al. v. Maria Chacon (KC065297)

MOTION FOR RECONSIDERATION

Moving Parties: Plaintiffs Jose Torres and Aurea Torres

Respondent: No opposition filed

POS: OK

This lawsuit concerns the allleged uninhabitable conditions of a residential apartment complex. Plaintiffs allege that the subject property was infested with bed bugs and had deplorable living conditions. Plaintiffs commenced this action on 12/20/12, asserting causes of action for:

1. Breach of Warranty of Habitability
2. Negligence – Premises Liability
3. Nuisance
4. Retaliatory or Constructive Eviction
5. Intentional Infliction of Emotional Distress
6. Negligent Infliction of Emotional Distress
7. Breach of Contract
8. Breach of Covenant of Quiet Enjoyment

The case was dismissed on motion of counsel for Plaintiffs on 12/10/14.

Plaintiffs Jose Torres and Aurea Torres (collectively “Plaintiffs”) move the court to reconsider the court’s ruling of December 10, 2014, dismissing this action on the grounds that the request for dismissal by Plaintiffs was in error.

When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. (CCP § 1008(a).)

Plaintiffs submit evidence that the court dismissed this action at the request of the appearance attorney that was appearing on behalf of Plaintiffs’ counsel on December 10, 2014, because the appearance attorney had been provided with erroneous information. (Motion, Virag Decl. ¶¶ 4-5.) Specifically, Plaintiffs represent that the appearance attorney was supposed to indicate to the court that Plaintiffs were requesting a default judgment and the package had been submitted. (Id. at ¶ 5-6.)

However, the fact that there was a miscommunication between Plaintiffs’ counsel and the attorney making the appearance is not “new or different” for the purposes of CCP § 1008. 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 Cal.App.4th 1494, 1500.) The burden under § 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Sup.Ct. (Wall St. Network, Ltd.) (2005) 135 Cal.App.4th 206, 212–213.)

Rather, it appears that the dismissal was entered because of the attorneys’ mistake and/or inadvertence and thus, Plaintiffs should seek relief under CCP § 473.

“[W]henever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, [the court shall] vacate any (1) resulting default entered by the clerk … or (2) resulting default judgment or dismissal entered against his or her client …” (CCP § 473.) The purpose is “to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) The only limitation is that the court may deny relief if it finds the default or dismissal “was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.” (CCP § 473(b).) The trial court may also deny the motion if it finds that the attorney’s declaration of fault is not credible. (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 915.)

Thus, for the sake of judicial efficiency, the court will treat this motion as a motion to set aside dismissal under CCP § 473. It appears that the order of dismissal was entered as a result of a miscommunication between Plaintiffs’ counsel and no fault of Plaintiffs. Thus, the motion to set aside is granted.

In reviewing the file in this matter as well as the copies of the default package attached as exhibits to Plaintiffs’ motion, the court notes the following:

1. Plaintiffs commenced this action more than two years ago, and counsel has been unable to compel the defendant to file an answer or to have her default entered.

2. Plaintiffs’ Complaint fails to specify the damages being sought in the prayer, although the body of the Complaint indicates that Plaintiffs seek damages “in excess of $25,000.” Thus, any default judgment herein will be limited to a maximum amount of $25,000. (See Falahati v. Kondo (2005) 127 Cal.App.4th 823, 830-831.)

3. Plaintiffs’ counsel neglected to specify the name of the defendant in box 1(c) of his Request for Entry of Default.

4. The declarations of Plaintiffs submitted in support of their request for a default judgment fail to document any property damage and/or medical expenses incurred as a result of defendant’s actions.

5. The declaration of Plaintiff’s counsel fails to demonstrate that he has personal knowledge and is therefore competent to testify as to the condition of the property, Plaintiffs’ injuries, or their damages.

6. Plaintiffs’ counsel has failed to comply with the requirements of California Rule of Court 3.1800 regarding obtaining default judgments and the documents required to be submitted to the court.

In light of the foregoing, the court will allow Plaintiffs’ counsel just one final opportunity to obtain a default judgment prior to a date to be set by the court, or face an involuntary dismissal of the action with prejudice.