Department 58

Hearing Date: September 28, 2022

Case Name: Jose Piseno, et al. v. Home Delivery Services, Inc., et al.

Case No.: 21STCV46524

Motion: Motion to Vacate Dismissal

Moving Party: Plaintiffs Jose Piseno; Jose Bolanos; Frank Gonzalez Caraballo; Edward Norton

Responding Party: Unopposed

Tentative Ruling: The Motion to Vacate Dismissal is granted. Plaintiffs are ordered to file their First Amended Complaint within 20 days.

Background

On December 21, 2021, Jose Piseno, Jose Bolanos, Frank Gonzalez Caraballo, and Edward Norton (Plaintiffs) filed their Complaint against Home Delivery Services, Inc., Christian Isaac Ambriz, and FedEx Corporation (Defendants). Plaintiffs allege violations of numerous Labor Codes including failure to pay overtime, failure to pay minimum wage, failure to reimburse business expenses, and unfair business practices.

On April 7, 2022, Plaintiffs filed a Request for Dismissal, dismissing the entire case without prejudice.

On July 15, 2022, Plaintiffs moved to vacate the dismissal. Defendants filed a notice of non-opposition.

Legal Standard

Code of Civil Procedure section 473, subdivision (b) provides for either discretionary or mandatory relief from certain prior actions or proceedings in the trial court. (Luri¿v. Greenwald¿(2003) 107 Cal.App.4th 1119, 1124.)

“ ‘Under the discretionary relief provision, on a showing of “mistake, inadvertence, surprise, or excusable neglect,”¿the court has discretion to allow relief from a “judgment, dismissal, order, or other proceeding taken against”¿a party or his or her attorney.¿¿Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of “mistake, inadvertence, surprise, or neglect,”¿the court shall vacate any “resulting default judgment or dismissal entered.” ’ [Citation.] Applications seeking relief under the mandatory provision of section 473 must be ‘accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.’ The mandatory provision¿further adds that ‘whenever relief¿is granted based on an attorney’s affidavit of fault [the court shall] direct the attorney to pay reasonable compensatory legal fees and costs¿to opposing counsel or parties.’¿” (Ibid.; Code Civ. Proc., § 473, subd. (b).)¿¿

The party seeking such relief must do so “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.)

Discussion

Plaintiffs’ motion is timely filed within six months of the dismissal order. The motion is supported by a declaration by Plaintiffs’ counsel, Justin G. Schmidt.

Mr. Schmidt has established mistake, inadvertence, and excusable neglect. He avers that he intended to dismiss FedEx Corporation because it was the incorrect party. (Schmidt Decl., ¶ 7.) After dismissal, Mr. Schmidt intended to amend the Complaint to add in a cause of action under the Private Attorney Generals Act and the correct Defendant, “FedEx Ground Package System, Inc.” (Id. at ¶¶ 4, 7, 11.) Instead, while training a new assistant, Mr. Schmidt printed several forms and inadvertently signed the form dismissing the entire Complaint. (Id. at ¶¶ 9-10.) This constitutes mistake.

Therefore, the motion to vacate dismissal is granted and the dismissal is set aside. Plaintiffs are ordered to file their First Amended Complaint within 20 days of this order.