Raul Mezacambron, Sr. v Caleb Young Joon Choe

Case Number

22CV02653

Case Type

Hearing Date / Time

Wed, 09/11/2024 - 10:00

Nature of Proceedings

Plaintiffs’ motion for relief from dismissal.

Tentative Ruling

Bradford D. Brown and Alan H. Fenton for Plaintiffs Raul Mezacambron, Sr. and Raul Mezacambron, Jr.                                   

Colette M. Asel of Mark Weiner & Associates for defendant Caleb Young Joon Choe

                       

RULING

The motion is granted, and the dismissal is ordered vacated. A further CMC re: Minor’s Compromise is set for 11/6/24 at 10am.

BACKGROUND

On February 8, 2024, plaintiff’s attorney, Bradford D. Brown, filed a Notice of Settlement of Entire Case, noting that the case was the subject of an unconditional settlement. At the scheduled February 9, 2024, settlement conference, attorney Brown advised the court that the case had settled. He advised that he had filed the Notice, and that the releases had been signed. He requested that a CMC be set, because a Minor’s Compromise needed to be filed. The settlement conference court then vacated the scheduled Trial Confirmation Conference and set a Case Management Conference re: Minor’s Compromise for May 15, 2024, in Dept. 3. Mr. Brown was directed to give notice.

On May 15, 2024, there were no appearances at the scheduled Case Management Conference. The trial court then dismissed the case with prejudice.

Motion

On August 12, 2024, plaintiffs filed the current motion for relief from dismissal pursuant to Code of Civil Procedure section 473, based upon the mistake, inadvertence, or neglect of counsel. It urges that the motion be granted based upon such excusable neglect, but alternatively is made on the mandatory ground for relief pursuant to an attorney’s affidavit of fault. It is supported by the declaration of attorney Brown, who declares that the case settled in a private mediation on February 8, 2024, and that the settlement for the minor plaintiff, Raul Meza Cambron, Jr., is subject to a minor’s compromise to be approved by the court. He filed a Notice of Settlement the same day, and appeared at the scheduled MSC on February 9, 2024, to advise the court of the need for a minor’s compromise proceeding to effectuate the settlement. The court then set a Continued CMC re: Minor’s Compromise for May 15, 2024. He declares further that due to his mistake, inadvertence, surprise, or excusable neglect, he did not properly calendar the continued CMC date, and did not appear. As lead counsel for plaintiff, he had the responsibility for making the appearance, and failed to inform his co-counsel of the continued CMC due to mistake, inadvertence, surprise, or excusable neglect. He was further informed that defense counsel accidentally closed their file after the mediation, and the continued CMC date was removed from their calendar such that they also did not appear at the continued CMC on May 15, 2024.

The Court dismissed the case with prejudice at the May 15, 2024, CMC. He only recently learned of the dismissal because there had been no notice. The dismissal needs to be vacated and a continued CMC re minor’s compromise needs to be calendared by the court, pending a hearing on plaintiff’s proposed petition for approval of compromise of claim for minor, which he attaches to the declaration. He is informed that there will be no opposition to the motion. He could not bring the motion sooner since the petition was delayed because the final amount of the Medi-Cal lien for the minor was slowed due to the similarity in the plaintiff’s names.

ANALYSIS

The motion is granted, the dismissal is ordered vacated, and a continued CMC re: minor’s compromise will be scheduled by the Court at the hearing on this motion.

Code of Civil Procedure section 473(b) provides, in relevant parts:

(b) The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever 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, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. . . .

Given that counsel has presented an attorney affidavit of fault, relief is mandatory even if the neglect is inexcusable. Even so, and while certainly not commendable, the inadvertent failure to properly calendar hearing dates is not unusual and constitutes excusable neglect. Further, counsel could not have anticipated that the consequences for his failure to attend a simple CMC would result in the dismissal of the case with prejudice.

For these reasons, the Court will grant the motion and order the dismissal vacated. A further CMC re: minor’s compromise will be set at the hearing of this motion. Plaintiffs’ counsel is now free to file and calendar the minor’s compromise petition for hearing on this department’s civil law and motion calendar. Plaintiff’s counsel is directed to provide notice of the Court’s ruling.