Judge: Armen Tamzarian, Case: 23STCV13541, Date: 2025-03-17 Tentative Ruling

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Case Number: 23STCV13541    Hearing Date: March 17, 2025    Dept: 52

            Plaintiff Juan Moore’s Motion to Set Aside Dismissal Under Code of Civil Procedure Section 473(b) and Reinstate Case

On October 24, 2024, at 9:30 a.m., the court commenced a non-jury trial.  Plaintiff Juan Moore’s attorney, Olivia Avelino, appeared for plaintiff.  When the court asked Avelino to call her first witness, she advised the court she had none.  Defendant then moved to dismiss the action.  The court granted the motion and dismissed the action without prejudice.  (See Code Civ. Proc., § 581, subd. (b)(5) [action may be dismissed “when either party fails to appear on the trial”]; see also Code Civ. Proc., § 631.8.)  

            Plaintiff now moves to vacate or set aside that order under Code of Civil Procedure 473, subdivision (b).  Plaintiff’s motion is based on Avelino’s declaration.  Avelino testified: “When I appeared for trial, I erroneously informed the Court that Plaintiff was not available for trial.  [¶] However, due to mistake, inadvertence and excusable neglect, I failed to inform the Court that Plaintiff was available for trial on October 24, 2024, but needed time to get to the courthouse.”  (2/18/25 Avelino Decl., ¶¶ 5, 6, italics added.)

            Avelino misstates the facts.  At no time during the trial did Avelino inform the court that plaintiff was “not available for trial.”  Indeed, Avelino did not say anything about plaintiff or make any statements from which the court could infer that plaintiff knew about the trial and “needed time to get to the courthouse.”

            “An attorney is an officer of the court and owes the court a duty of candor.”  (Levine v. Berschneider (2020) 56 Cal.App.5th 916, 921.)  Avelino is not being candid with the court.

            Avelino’s conclusory statements do not explain the full story.  She does not, for example, state whether she or anyone at her law firm communicated with plaintiff on October 24, 2024, prior to trial.  She does not even claim she had any reason to believe plaintiff was coming to the courthouse on that day.  Indeed, there is no evidence in the record that at 9:30 a.m. on October 24, 2024, plaintiff even knew there was a trial in his case.  Plaintiff could have easily provided such evidence by filing a declaration stating these basic facts.

            Nonetheless, the court must grant relief from the dismissal.  Code of Civil Procedure section 473, subdivision (b) provides in relevant part: “[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any … resulting dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”  These “mandatory relief provisions … require the court to grant relief if the attorney admits neglect, even if the neglect was inexcusable.”  (Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995) 31 Cal.App.4th 1481, 1487.)

            Avelino attests that her mistake resulted in the dismissal.  Though her declaration is less than forthcoming, the record adequately shows that plaintiff’s counsel’s neglect or mistake caused the dismissal.  The court finds the mistake or neglect was not excusable, but relief is mandatory under Code of Civil Procedure section 473(b).

Disposition

            Plaintiff Juan Moore’s motion to set aside dismissal is granted.  The court hereby vacates the dismissal of this action.  The court hereby sets the case for jury trial on May 21, 2025, at 10:00 a.m.