Hearing Date: March 13, 2019
Case Name: Litinsky v. Harutyunov, et al.
Case No.: BC713781
Motion: Motion to Set Aside Dismissal
Moving Party: Plaintiff Mina Litinsky
Responding Party: Defendant Armine Harutyunyan
Tentative Ruling: The Motion to Set Aside Dismissal is denied.
This is an action in which Plaintiff alleges that Defendant Vadim Harutyunov and his attorney Defendant Jayne T. Kaplan pursued a meritless lawsuit (Harutyunov v. Litinsky, BC643852 (“Underlying Action”)) against her as punishment for providing testimony inRaskin v. Petrosyan, BC447668. On July 13, 2018, Plaintiff filed the operative Complaint alleging causes of action for (1) wrongful use of civil proceedings, (2) malicious prosecution, (3) intentional infliction of emotional distress (“IIED”), and (4) fraud.
On November 8, 2018, the Court granted Defendant Kaplan’s anti-SLAPP motion.
On December 6, 2018, the Court granted Defendant Armine Harutyunyan’s anti-SLAPP motion.
Motion to Set Aside Dismissal
Plaintiff seeks to set aside Defendant Armine Harutyunyan’s dismissal. As discussed, on December 6, 2018, the Court granted Defendant Armine Harutyunyan’s anti-SLAPP motion. Plaintiff argues that this dismissal was caused by her counsel’s error in law. That is, Plaintiff’s opposition argued only that Armine Harutyunyan’s anti-SLAPP motion was untimely and did not substantively oppose the motion. Plaintiff contends that had her counsel not made an error as to the timeliness of the anti-SLAPP motion, the motion would have been substantively opposed and the dismissal would have been avoided. Thus, Plaintiff argues, the dismissal should be set aside per the mandatory provision of Code Civ. Proc. § 473(b).
The Motion is denied because Code Civ. Proc. § 473(b) is inapplicable to the subject dismissal. (See Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 683 [“We find this reasoning equally serviceable here, where there was no complete failure to oppose, but rather an opposition which was, though apparently timely and procedurally accurate, inadequate in substance. This case was not a default but rather a motion lost, on its merits, after opposition was filed. Section 473 was not meant to apply to these facts.”].)