Case Number: BC676657 Hearing Date: June 06, 2019 Dept: 4A
Demurrer with Motion to Strike
Having considered the demurring and moving papers, the Court rules as follows. No opposition was filed.
BACKGROUND
On September 20, 2017, Plaintiffs Soledad Gutierrez, Brittney Avila, Destiny Verduzco, and Valentin Verduzco (“Plaintiffs”) filed a complaint against Defendants Romelia Ornelas and Louie Ornelas (“Defendants”). The complaint alleged a breach of warranty of habitability, negligent maintenance, and an intentional infliction of emotional distress for a failure to maintain a roach and mold infestation in rented property and attempting a wrongful eviction.
On May 6, 2019, Defendants filed a demurrer to Plaintiffs’ complaint arguing a failure to plead sufficient facts to state a cause of action for intentional infliction of emotional distress and that the same cause of action is uncertain.
Also on May 6, 2019, Defendants filed a motion to strike the prayers for punitive damages, attorney’s fees, and special damages from Plaintiffs’ complaint.
On May 7, 2019, Plaintiffs filed a First Amended Complaint to plead additional facts.
A trial setting conference is scheduled for June 20, 2019.
PARTY’S REQUEST
Defendants request that the Court sustain their demurrer to Plaintiff’s claim for intentional infliction of emotional distress pursuant to California Code of Civil Procedure section 430.10, subdivisions (e) and (f).
Defendants also request that the Court grant their motion to strike the prayers for punitive damages, attorneys fees, and special damages on the grounds that such requests are irrelevant, false, or improper.
LEGAL STANDARD
“[T]he filing of an amended complaint renders moot a demurrer to the original complaint.” (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477.)
DISCUSSION
Plaintiffs filed a First Amended Complaint subsequent to the filing of Defendants’ demurrer and motion to strike. Plaintiffs’ filing of the First Amended Complaint renders Defendants’ demurrer and motion to strike moot.
The demurrer is OVERRULED as MOOT.
The motion to strike is DENIED as MOOT.
Defendants are ordered to give notice of this ruling.
Case Number: BC692320 Hearing Date: June 06, 2019 Dept: 4A
Motion to Set Aside Dismissal
Having considered the moving and opposing papers, the Court rules as follows. No reply was filed.
BACKGROUND
On January 31, 2018, Plaintiffs Robert Glen Batchko, Kimberly Batchko, and Maxwell Batchko (“Plaintiffs”) filed a complaint against Defendant Stephen Homer Day (“Defendant”) alleging negligence for an automobile collision that occurred on February 2, 2016.
On December 4, 2018, the Court ordered Plaintiffs to serve verified responses without objections to Defendant’s Form Interrogatories, Special Interrogatories, and Request for Production of Documents (All Set One) within 30 days.
On April 4, 2019, the Court dismissed Plaintiffs’ complaint without prejudice for Plaintiffs’ failure to comply with the Court’s December 4, 2018 order.
On May 9, 2019, Plaintiffs filed a motion to set aside the April 4, 2019 dismissal due to their counsel’s mistake, inadvertence, surprise, or neglect.
PARTIES’ REQUEST
Plaintiffs request that the Court set aside the September 20, 2018 dismissal a pursuant to California Code of Civil Procedure section 473, subdivision (b).
Defendant requests that the Court order Plaintiffs to pay Defendant $700.00 in monetary sanctions for opposing the motion to set aside.
LEGAL STANDARD
California Code of Civil Procedure section 473, subdivision (b) states: “. . . [T]he 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 . . . 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. . . .”
Relief is mandatory when an attorney files the required affidavit, even if the attorney’s neglect was inexcusable. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 401 (setting aside a default entered when the attorney failed to file an answer).) No reason need be given for the existence of one of these circumstances and attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these reasons. (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660.)
“The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc. § 473, subd. (b).)
DISCUSSION
Plaintiffs’ counsel declares that the ordered responses were drafted, but not verified or mailed. (Baghdassarian Decl., ¶ 5.) Plaintiffs’ counsel implies that this was due to staffing issues and Plaintiffs’ counsel’s failure to supervise his staff. (Baghdassarian Decl., ¶¶ 3-6, 10.)
The Court finds Plaintiff’s counsel’s declaration to be satisfactory. Plaintiff’s counsel has admitted that the dismissal was due to counsel’s neglect. As such, relief from the dismissal is mandatory.
Defendant’s counsel requests $700.00 in monetary sanctions for one hour drafting the opposition and supporting declaration and three hours attending the hearing on this motion, all at a rate of $160.00 an hour, plus one $60.00 filing fee. (Gamboa Decl., ¶ 8.) The Court finds this to be a reasonable amount of sanctions to be imposed against Plaintiffs’ counsel for his mistake.
Plaintiff’s motion is GRANTED.
The Court vacates the April 4, 2019 dismissal.
The Court orders Plaintiffs’ counsel of record to pay $700.00 to Defendant within 30 days of this order.
The Court orders Plaintiffs and Defendant to appear at a trial setting conference on June 13, 2019 at 8:30 a.m. in Department 4A at Spring Street Courthouse, 312 North Spring Street, Los Angeles, California 90012.
Plaintiff is ordered to give notice.