Judge: Daniel M. Crowley, Case: 18STCV09805, Date: 2023-03-08 Tentative Ruling

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Case Number: 18STCV09805    Hearing Date: March 8, 2023    Dept: 28

Plaintiff Robert Gambino’s Motion to Vacate Entry of Dismissal

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

BACKGROUND

On December 27, 2018, Plaintiff Robert Gambino (“Plaintiff”) filed this action against Defendants Orchid Fragrance (“OF”) and Orchid Perfumes, LLC (“OP”) for negligence.

On May 6, 2020, the clerk entered default against OP. On October 25, 2021, the Court dismissed OF, without prejudice, pursuant to Plaintiff’s request.

On May 31, 2022, the Court dismissed the action, without prejudice.

On November 29, 2022, Plaintiff filed a Motion to Vacate Dismissal to be heard on March 8, 2023.

There is no currently scheduled trial date.

PARTY’S REQUESTS

Plaintiff requests the Court vacate dismissal.

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

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

Plaintiff’s counsel submitted a declaration stating that counsel was ill during the last OSC, resulting in their non-appearance. Plaintiff has complied with all requirements and the Court grants the motion.

CONCLUSION

Plaintiff Robert Gambino’s Motion to Vacate Entry of Dismissal is GRANTED. Dismissal is vacated.

The Court sets an Order to Show Cause Re: Failure to Resubmit Default Judgment Packet for April 6, 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.