Alaoui v. Vaynerman CA2/5

Filed 11/8/21 Alaoui v. Vaynerman CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

AZIZ ALAOUI, B308421

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. v. BC699545)

YEVGENIY VAYNERMAN,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas D. Long, Judge. Dismissed. Law Offices of D. Hess Panah & Associates and D. Hess Panah, for Plaintiff and Appellant. McNeil Tropp & Braun, Deborah S. Tropp, and Tracy L. Breuer, for Defendant and Respondent.

This appeal fails for want of a signed order of dismissal or final judgment in the appellate record.

I. BACKGROUND As alleged in the complaint, plaintiff and appellant Aziz Alaoui (Alaoui) and defendant and respondent Yevgeniy Vaynerman (Vaynerman) were involved in an automobile collision in April 2016. Approximately two years later, Alaoui filed a complaint against Vaynerman alleging a single cause of action for negligence. Vaynerman answered the complaint, and the record suggests the parties engaged in an unspecified amount of discovery. The trial court held a final status conference in February 2020. Neither party appeared. The matter was called for trial early the following month. Vaynerman was present; Alaoui was not. The trial court issued a minute order dismissing Alaoui’s complaint without prejudice pursuant to Code of Civil Procedure section 581, subdivision (b)(5).1 The minute order dismissing the complaint is not signed, and the record contains no judgment of dismissal. Alaoui subsequently filed a motion to set aside the dismissal under Code of Civil Procedure section 473, which argued he was entitled to relief because his failure to appear was due to his attorney’s excusable neglect. Alaoui’s attorney, D. Hess Panah (Panah), provided a declaration asserting Panah’s office had been diligent in pursuing Alaoui’s rights, Panah was unaware how the trial date had not been properly calendared,