Judge: Anne Hwang, Case: 21STCV41952, Date: 2023-09-12 Tentative Ruling
Case Number: 21STCV41952 Hearing Date: September 12, 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
| DEPT: | 32 |
| HEARING DATE: | September 12, 2023 |
| CASE NUMBER: | 21STCV41952 |
| MOTIONS: | Motion to Set Aside |
| Plaintiff Isidro Barajas | |
| OPPOSING PARTY: | Unopposed |
BACKGROUND
On November 15, 2021, Plaintiff Isidro Barajas filed a complaint against Defendants Los Angeles County Metropolitan Transportation Authority, City of Los Angeles, County of Los Angeles, and California Department of Transportation (Defendants) for damages after he slipped and fell.
On May 15, 2023, the case was called for a non-jury trial and Plaintiff did not appear. That day, the court dismissed Plaintiff’s complaint without prejudice pursuant to Code of Civil Procedure section 581(b)(3).
On May 30, 2023, Plaintiff filed the instant motion to set aside the dismissal.
LEGAL STANDARD
Under Code of Civil Procedure section 473(b), the Court may relieve a party from a dismissal taken against him through his mistake, inadvertence, surprise, or excusable neglect. This application must be filed no more than six months after entry of the order from which relief is sought, and must contain an affidavit of fault demonstrating the moving party’s mistake, inadvertence, surprise, or excusable neglect.
A mistake is a basis for relief under section § 473 when by reason of the mistake a party failed to make a timely response. Surprise occurs when a party is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the party has shown some reasonable excuse for the default. (Credit Managers Association of California v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.) Under section § 473, the moving party bears the burden of demonstrating an excusable ground, such as fraud or mistake, justifying a court’s vacating a judgment. (Basinger v. Roger & Wells (1990) 220 Cal.App.3d 16, 23–24.)
Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.)
DISCUSSION
Procedurally, the present motion is timely because it was filed within six months after the case was dismissed.
Plaintiff’s counsel attached a signed declaration to this motion. In it, he explained that he did not appear for trial on May 15, 2023 because the date was accidentally not placed in his calendar. (Fradkin Decl. ¶ 6.) Additionally, he admitted that his failure to appear was due to his inadvertence and mistake. (Id. ¶ 8.) Based on the above, Plaintiff’s counsel has admitted fault and the motion to set aside dismissal is GRANTED.
CONCLUSION AND ORDER
Therefore, the Court GRANTS the motion to set aside dismissal.
Plaintiff shall provide notice of the Court’s order and file a proof of service of such.