Judge: Daniel M. Crowley, Case: 21STCV07477, Date: 2023-03-07 Tentative Ruling
Case Number: 21STCV07477 Hearing Date: March 7, 2023 Dept: 28
Plaintiff Moises Davood’s Motion to
Vacate Entry of Dismissal
Having considered the moving papers,
the Court rules as follows.
BACKGROUND
On February 25, 2021, Plaintiff
Moises Davood (“Plaintiff”) filed this action against Defendant Rachel Kari
Brandenberg (“Defendant”) for negligence.
On August 25, 2022, the Court
dismissed the action, without prejudice.
On November 28, 2022, Plaintiff
filed a Motion to Vacate Dismissal to be heard on March 7, 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 they mistakenly failed to calendar the trial, resulting in their
non-appearance. Plaintiff has complied with all requirements and the Court
grants the motion.
CONCLUSION
Plaintiff
Moises Davood’s Motion to Vacate
Entry of Dismissal is GRANTED. Dismissal is vacated.
The Court sets a hearing on an Order to Show
Cause why the case should not be dismissed for Plaintiff’s failure to file
proof of service of the summons and complaint and Trial Setting Conference for April
5, 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.