Jacob Kern vs. Lindsey San Martin - Supervisor Home Owner Claims - CSAA

34-2022-00315573-CU-IC-GDS: Jacob Kern vs. Lindsey San Martin - Supervisor Home Owner Claims - CSAA 11/27/2024 Hearing on Motion to Set Aside/Vacate Dismissal in Department 53

Tentative Ruling

NOTICE: Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure: To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below.

If no request for oral argument is made, the tentative ruling becomes the final order of the Court. Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings.

The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED. Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/courtreporters/docs/crtrp-6a.pdf.

Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list, Once the form is signed it must be filed with the clerk.

If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided. TENTATIVE RULING: Plaintiff in pro per’s motion pursuant to Code of Civil Procedure §473(b) for order to vacate dismissal of this action is ruled upon as follows.

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06, and does not provide the correct address for Dept. 53/54. Moving party is directed to contact opposing counsel and advise him/her of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing,

34-2022-00315573-CU-IC-GDS: Jacob Kern vs. Lindsey San Martin - Supervisor Home Owner Claims - CSAA 11/27/2024 Hearing on Motion to Set Aside/Vacate Dismissal in Department 53

along with the correct address for Dept. 53/54. If moving party is unable to contact opposing counsel prior to the hearing, moving party is ordered to appear at the hearing in person, by Zoom or by telephone.

The notice of motion does not comply with Code of Civil Procedure §1010 or CRC Rule 3.1110(a), requiring the moving party to state the grounds for the motion presented.

Factual Background

Plaintiff in pro per commenced this breach of contract action against his home’s insurer in February 2022. Trial was set for 7/22/2024 but the case was at defendant’s request ordered dismissed because plaintiff failed to appear on 7/22/2024 for trial assignment.

According to the moving papers filed on 7/26/2024, plaintiff moves to vacate the order of dismissal because his non-appearance on 7/22/2024 “was caused by an unforeseen power outage resulting in the loss of Wi-Fi connection which prevented Plaintiff from attending the hearing remotely.” Plaintiff adds that he currently resides “out of state” and had “already declared” his intention to “appear remotely for all hearings in this case.” As support for the motion, plaintiff submits a declaration attesting to the foregoing facts and includes a copy of “the utility company notification confirming the power outage.”

Defendant opposes, arguing this motion should for various reasons be denied. First, the opposition contends that plaintiff “admits in his motion he had no intention of appearing for trial” as “he was at home in Arizona” and contrary to his assertion, he had not notified defendant he planned to appear remotely inasmuch as his Notice of Intent to Appear Remotely did not “check the box for evidentiary hearings of trial and does not explain how [plaintiff] intended to participate in examination and cross-examination from Arizona.” Second, according to the opposition, plaintiff also knew the night before the 7/22/2024 hearing that his power might be off in the morning but “he made no effort whatsoever to work around the situation” (including calling and/or emailing the Court and defendant’s counsel or finding a nearby location with internet service), thereby justifying the dismissal under Code of Civil Procedure §581.

Finally, defendant claims it will be prejudiced if the dismissal is vacated insofar as defendant was prepared to proceed to trial on 7/22/2024 with exhibits and other filings, witnesses (some of whom had been subpoenaed), and outlines for witness examination and cross-examination but may now “have to start this process over, much of it from scratch,” with witnesses who may no longer be available or may now have faded memories.

Discussion

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00315573-CU-IC-GDS: Jacob Kern vs. Lindsey San Martin - Supervisor Home Owner Claims - CSAA 11/27/2024 Hearing on Motion to Set Aside/Vacate Dismissal in Department 53

Code of Civil Procedure §473(b) provides in pertinent part:

(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.

This provision vests all courts with broad discretion to grant relief necessitated by some mistake, inadvertence, surprise, or excusable neglect. California case law explains that §473(b) is “a remedial statute, and as such is to be construed liberally, which is to say expansively, to favor its object that cases be adjudicated on the merits rather than determined by default.” (See, e.g., Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 894.) According to the California Supreme Court, the provisions of §473(b) are to be liberally construed and public policy considerations generally favor the determination of actions on their merits (see, e.g., Zamora v.

Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 256) and because the law strongly favors trial on the merits, doubts as to the applicability of §473(b) are to be resolved in favor of the party seeking relief. (see, e.g., Elston v. City of Turlock (1985) 38 Cal.3d 227, 233).

There can be no dispute that denial of this motion for relief under Code of Civil Procedure §473(b) would effectively prevent plaintiff from having any opportunity to obtain a determination on the merits of his claim against defendant and thus, this present case appears to be precisely the scenario where §473(b) not only should apply but also should be applied in furtherance of the public policy favoring resolution of actions on their merits.

While the opposition takes issue with plaintiff’s advance knowledge that his wi-fi might be affected on 7/22/2024 and the steps he could have taken to “work around the situation,” plaintiff’s moving papers sufficiently establish that his failure to appear for trial assignment on 7/22/2024 and the order of dismissal were the result of some mistake, inadvertence, surprise, and/or excusable neglect within the meaning of §473(b) and thus, he has made a prima facie showing of entitlement to relief under this statute.

The mere fact that plaintiff could have taken other steps to make an appearance on 7/22/2024 does not, without more, preclude relief under §473(b) when (1) as noted above, it is “a remedial statute” which “is to be construed liberally” in favor of relief and (2) the vast majority of defaults and involuntary dismissals likely could have been avoided if a different and better course of action had in retrospect been taken. The standard which defendant seeks to impose in this case on the availability of relief under §473(b) runs counter to a vast body of California authority and shall be rejected here.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00315573-CU-IC-GDS: Jacob Kern vs. Lindsey San Martin - Supervisor Home Owner Claims - CSAA 11/27/2024 Hearing on Motion to Set Aside/Vacate Dismissal in Department 53

Defendant’s additional argument about the prejudice it will experience if the dismissal were vacated is similarly misguided. The prejudice cited in the opposition is not directly relevant to the analysis under §473(b), which instead focuses on the existence of “mistake, inadvertence, surprise, or excusable neglect,” and to the extent this prejudice may be, it is readily apparent that the prejudice plaintiff would suffer from the denial of this motion (i.e., the opportunity to obtain a determination on the merits of his claim against defendant) easily outweighs defendant’s claimed prejudice.

Defendant’s suggestion that it “will have to start this process [of trial preparation] over” does not withstand scrutiny, as this Court finds no reason why the trial briefs, exhibits, outlines for examination of witnesses, etc. which were previously prepared cannot be used again or otherwise need to be ‘started over.’

Finally, while plaintiff’s intended “remote appearance” for trial may well create a variety of issues, such matters are to be resolved by the trial judge once assigned and this Court need not address them here.

Disposition

For the reasons explained above, plaintiffs’ motion to vacate the 7/22/2024 order of dismissal is GRANTED and the Clerk is directed to restore this action to the Civil Active List.

The parties are directed to meet-and-confer in an attempt to find a mutually agreeable trial date and to promptly contact the Clerk in Department 47 to obtain a new trial date.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)