Judge: Anne Hwang, Case: 21STCV31455, Date: 2023-08-03 Tentative Ruling

Case Number: 21STCV31455    Hearing Date: August 3, 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 (which is highly encouraged).  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

            Plaintiff Tefilo Dela Cruz Jr. (Plaintiff) through their legal representative, Daniel Moossai (“Counsel”), moves to set aside the Court’s order of February 22, 2023, in which the Court dismissed the entire action without prejudice. The motion is unopposed.    

ANALYSIS

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”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4^th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]).  “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.) 

Code of Civil Procedure section 1005 requires “written notice” of a motion including the date, time and location of the hearing on a motion.  Equally important, a moving party’s failure to serve the notice of motion and moving papers on a non-moving party violates the basic principles of procedural due process under the federal and state constitutions – notice and an opportunity to be heard.  (Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 428 [minimum due process requires notice and opportunity for hearing appropriate to the nature of the case]; Horn v. County of Ventura (1979) 24 Cal.3d 605, 612 [due process principles require reasonable notice and opportunity to be heard].)   

            Here, Plaintiff advances the declaration of Counsel.  Counsel avers that his staff unintentionally did not have the date for trial in the calendaring system and thus the date was not on their calendar. (Moosai Decl., ¶¶5-6.)

            However, Plaintiff has not provided proof of service of the motion on Defendant.  Accordingly, the Court DENIES the motion as procedurally defective.

CONCLUSION AND ORDER

Plaintiffs’ Motion to Set Aside the Dismissal is DENIED without prejudice.  Plaintiff shall give notice of the Court’s ruling and file a proof of service of such.