Judge: Alison Mackenzie, Case: 22STCV33869, Date: 2024-10-24 Tentative Ruling

Case Number: 22STCV33869    Hearing Date: October 24, 2024    Dept: 55

NATURE OF PROCEEDINGS: Hearing on Plaintiff's Motion to Set Aside Dismissal

Plaintiff's Motion Set Aside Dismissal is granted. 

BACKGROUND

Plaintiff Grand Avenue M Urban Housing LLC brought this action against Corphousing Group Inc., alleging breach of lease.

On 5/28/2024, both parties failed to appear at an OSC Re: Dismissal (Settlement), and the Court ordered the Complaint dismissed without prejudice.

The motion now before the Court is Plaintiff's unopposed Motion to Set Aside/Vacate Dismissal

LEGAL STANDARD

Per Code of Civil Procedure section 473, subdivision (b), a court may “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.” In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney's sworn affidavit attesting to the attorney's mistake, inadvertence, surprise or neglect “unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise or neglect.” Code Civ. Proc., § 473, subd. (b).

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 (“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”).

ANALYSIS

Preliminarily, Plaintiff's motion is timely because Plaintiff filed the motion less than six months after the Court dismissed the action on May 28, 2024.

The Court finds that Plaintiff's failure to appear at the Order to Show Cause Re: Dismissal (Settlement) was the result of counsel’s mistake, inadvertence, surprise, or excusable neglect. Counsel avers that Plaintiff failed to appear because counsel was unaware of the hearing date as he failed to file a change of address or to check the court’s docket. Declaration of Todd E. Whitman ¶ 6.

Therefore, the Court grants Plaintiff’s motion to set aside the Order of Dismissal and orders the dismissal entered on May 28, 2024, vacated.

CONCLUSION

Plaintiff's Motion to Set Aside Dismissal is granted. The Court will set a new date for the OSC re dismissal.