Judge: Anne Hwang, Case: 21STCV05271, Date: 2023-08-25 Tentative Ruling

Case Number: 21STCV05271    Hearing Date: August 25, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

             On July 1, 2023, Plaintiff Janet Tripet (“Plaintiff”) moves to set aside the Court’s Order on February 15, 2023, which dismissed Plaintiff’s Complaint against Defendant Patrick Lynch (“Defendant”) without prejudice. The motion is unopposed.    

ANALYSIS

Under Code of Civil Procedure, section 473, subdivision (b), an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise, or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) When relief from default and a default judgment is based on an attorney affidavit of fault, the six-month period starts to run from the date of the entry of the default judgment. (Code Civ. Proc., § 473, sub. (b); Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 295.)¿¿ 

Here, Plaintiff’s counsel claims he learned on March 8, 2023, that he inadvertently misplaced the file in the case. (Segal-Gutierrez Decl. ¶2.) Counsel’s paralegal noticed that the case had not been listed on the office calendar. (Id. at ¶3.) Consequently, counsel failed to appear at the OSC hearing and the court dismissed the case on February 15, 2023. (Id.) Plaintiff argues that Defendant will not be prejudiced because of the delay in bringing the case to trial. The Court finds that Defendants are not likely to be prejudiced by setting aside the dismissal because they have not opposed the motion and have not yet appeared in the instant action.

Furthermore, Plaintiff timely seeks to set aside the dismissal within six months.  The Court dismissed Plaintiff’s Complaint without prejudice on February 15, 2023. Plaintiff moved to set aside the dismissal on July 1, 2023, before the six-month deadline had passed. Therefore, counsel demonstrates his failure to appear was the result of a mistake, inadvertence, and neglect on his part. 

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiff’s unopposed motion to set aside the Order of Dismissal, and vacates the order of February 15, 2023, dismissing Plaintiff’s Complaint.

The
Court sets an Order to Show Cause on October 03, 2023, at 830 AM in Department
32 regarding the dismissal of the action, and/or the imposition of sanctions
against Counsel for Plaintiff, for failing to serve the summons and complaint
within two years of commencing the action. 
(See Code Civ. Proc., §§ 128, 177.5, 583.410 & 583.420, subd.
(a)(1); Cal. Rules of Court, rule 2.30.) 
The Court may dismiss the action, and/or impose sanctions against
Counsel for Plaintiff, at the time of the Order to Show cause hearing if
counsel or parties fail to appear, or fail to give good cause for the delay in
serving the summons and complaint. 

            Plaintiff shall give notice of the Court’s order and file a proof of service of such.