Judge: Daniel M. Crowley, Case: 20STCV23211, Date: 2022-12-21 Tentative Ruling
Case Number: 20STCV23211 Hearing Date: December 21, 2022 Dept: 28
Motion to Set Aside/Vacate Dismissal
Having considered the moving papers, the Court rules as follows. No opposing papers were filed.
BACKGROUND
On June 19, 2020, Plaintiff Sam Cornejo (“Plaintiff”) filed a complaint alleging motor vehicle/negligence causes of action arising from an accident that occurred on June 20, 2018.
On June 20, 2022, the Court ordered dismissal of the entire action without prejudice for Plaintiff’s failure to appear on the June 20, 2022, Trial Setting Conference; Order to Show Cause Re: Dismissal for Failure to File Proof of Service of Summons and Complaint. There were no communications with the Court as to why there were no appearances.
On November 29, 2022, Plaintiff filed a motion to set aside/vacate dismissal pursuant to California Code of Civil Procedure section 473, subdivision (b).
PARTY’S REQUESTS
Plaintiff requests the Court to set aside the Court’s dismissal on June 20, 2022 because Plaintiff’s counsel failed to appear due to counsel’s error.
LEGAL STANDARD
California Code of Civil Procedure section 473, subdivision (b) states: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a[n] . . . other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the . . . other proceeding was taken. . . .” 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. . . .”
Relief is mandatory when an attorney files the required affidavit, even if the attorney's neglect was inexcusable. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 401 (setting aside a default entered when the attorney failed to file an answer).) No reason need be given for the existence of one of these circumstances and attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these reasons. (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660.)
DISCUSSION
Plaintiff’s counsel declares that he failed to properly calendar the OSC on June 20, 2022. (Hutting Decl. ¶ 3-4.)
The Court finds the motion is properly granted. Plaintiff’s counsel has filed the appropriate affidavit attesting that the dismissal was solely a result of counsel’s mistake, and there is no requirement that the mistake or neglect be excusable. Relief must be granted if Plaintiff’s counsel declares his fault. Thus, this is sufficient to grant section 473 relief.
CONCLUSION
Plaintiff’s motion is GRANTED.
The Court vacates the June 20, 2022 dismissal. The Court sets a hearing on an Order to Show Cause Re: Dismissal for Failure to File Proof of Service of Summons and Complaint on February 21, 2023 at 8:30 a.m. in Dept. 28.
Plaintiff is ordered to give notice of this ruling.
The parties are directed to the header of this tentative ruling for further instructions.