Judge: Daniel M. Crowley, Case: 20STCV10193, Date: 2022-09-27 Tentative Ruling
Case Number: 20STCV10193 Hearing Date: September 27, 2022 Dept: 28
Plaintiff Luis Fernando’s Motion to Vacate Entry of
Dismissal.
Having considered the moving papers, the Court rules as
follows.
BACKGROUND
On
March 13, 2020, Plaintiff Luis Fernando (“Plaintiff”) filed this action against
Defendants EAN Holdings, LLC (“EAN”), Ky Veng Chhean (“Ky”), Chou M. Chhean
(“Chou”) and Sylvia Miravet Damato (“Damato”) for motor vehicle negligence and
general negligence.
On
September 10, 2021, the Court dismissed the Complaint.
On
March 29, 2022, Plaintiff filed a Motion to Vacate Default to be heard on April
21, 2022. The motion was continued and is now set to be heard on September 27,
2022.
There
is no trial date currently set.
PARTY’S REQUESTS
Plaintiff
requests 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
The
Court has on file an order to change the date on the filing of the Motion to
Vacate Judgment from March 29, 2022, to March 9, 2022. This means the motion
was submitted within the required 6-month timeframe.
Plaintiff
submitted a declaration stating that dismissal was due to Plaintiff attorney’s
mistake in failing to schedule the FSC and trial date on the firm calendar.
Plaintiff has met with all requirements; the Court grants the motion.
CONCLUSION
Plaintiff Luis Fernando’s Motion to Vacate Entry of
Dismissal is GRANTED. Dismissal is vacated.
The Court sets trial on November 29, 2022, at 8:30 a.m. in
Dept. 28, and sets the matter for a Final Status Conference on November 15, 2022,
at 10:00 a.m., also in Dept. 28. Discovery remains cut off, as does the right
to bring motions.
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.