Judge: Daniel M. Crowley, Case: 18STCV07473, Date: 2022-08-10 Tentative Ruling

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Case Number: 18STCV07473    Hearing Date: August 10, 2022    Dept: 28

Plaintiffs Cefawne Rene Miller and Dakotah Charles Motion to Vacate Entry of Dismissal

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

BACKGROUND

On December 6, 2018, Plaintiffs Cefawne Rene Miller (“Miller”) and Dakotah Charles (“Charles”) filed this action against Defendant Yolanda Esther Del Portillo (“Defendant”) for motor vehicle negligence and general negligence.

On November 22, 2021, the Court dismissed the Complaint, without prejudice.

On May 19, 2022, Plaintiffs filed a Motion to Vacate Default to be heard on August 10, 2022.

There is no trial date currently set.

PARTY’S REQUESTS

Plaintiffs request the Court vacate the judgment of dismissal, based on the fact Plaintiff’s lack of appearance was based on attorney’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.)

DISCUSSION

Plaintiffs’ application was submitted within 6 months of dismissal. Plaintiffs provided a declaration stating the failure to appear was due to counsel’s mistake, inadvertence, surprise and neglect, in that the scheduled November 22, 2021, hearing was not calendared properly. As such, the Court finds that Plaintiffs have satisfied the mandatory provision for relief and grants the motion.  Nonetheless, the Court imposes a penalty against Plaintiffs’ counsel of $250 under Code of Civil Procedure section 473(c)(1)(A).

CONCLUSION

Plaintiffs Cefawne Rene Miller and Dakotah Charles Motion to Vacate Entry of Dismissal is GRANTED. Dismissal is vacated.  The Court imposes a penalty of $250 under Code of Civil Procedure section 473(c)(1)(A), which must be paid by Plaintiffs’ counsel by September 9, 2022.

            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.