Judge: Cherol J. Nellon, Case: 21STCV19681, Date: 2023-04-21 Tentative Ruling

Case Number: 21STCV19681    Hearing Date: April 21, 2023    Dept: 28

Plaintiff Kenneth Rodriguez’s Motion to Vacate Entry of Dismissal

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On May 25, 2021, Plaintiff Kenneth Rodriguez (“Plaintiff”) filed this action against Defendant Luis Amge Rivera Hernandez (“Luis”) for motor vehicle negligence. Plaintiff later amended the complaint to include Defendant Rivera Alberto Hernandez (“Alberto”).

On February 6, 2023, the Court dismissed Luis, without prejudice, pursuant to Plaintiff’s request.

On August 19, 2022, the clerk entered default against Alberto.

On November 22, 2022, the Court dismissed “DOES 1 to 100, inclusive”, without prejudice, pursuant to Plaintiff’s request.

On March 17, 2023, Plaintiff filed a Motion to Vacate Dismissal of Rivera Alberto Hernandez to be heard on April 21, 2023.

PARTY’S REQUESTS

Plaintiff requests the Court vacate dismissal as it was entered due to Plaintiff’s counsel’s mistake.

LEGAL STANDARD

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) The discretionary provision grants relief based upon a party or legal representative’s mistake, inadvertence, surprise, or neglect. The discretionary provision states in pertinent part:

“The court may, upon any terms as may be just, 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

The mandatory provision states in pertinent part:

“Notwithstanding any other requirements of this section, the 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 (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or 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. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”

“The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys. [Citation.]” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723, emphasis added.)

CCP §473(b) does not apply setting aside mandatory dismissal entered pursuant to §583.250. (Bernasconi Commercial Real Estate v. St. Joseph's Regional Healthcare System (1997) 57 Cal.App.4th 1078.)

DISCUSSION

Hernandez was originally amended in as DOE 1; in dismissing DOES 1-100, the Court also dismissed Hernandez.

Plaintiff’s application was filed within 6 months of dismissal of Hernandez.

Plaintiff’s counsel submitted a declaration stating that counsel inadvertently dismissed Hernandez. As the dismissal was due to attorney’s mistake, Plaintiff has complied with all requirements for relief. The Court grants the motion.

CONCLUSION

Plaintiff Kenneth Rodriguez’s Motion to Vacate Entry of Dismissal is GRANTED. Dismissal of Hernandez is vacated.

The Court sets an Order to Show Cause Re: Failure to Resubmit Default Judgment Packet for May 23, 2023, at 8:30 a.m., in Department 28 of the Spring Street Courthouse.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.