Judge: Daniel M. Crowley, Case: BC683110, Date: 2022-09-22 Tentative Ruling

Case Number: BC683110    Hearing Date: September 22, 2022    Dept: 28

Plaintiff Larisa Galstyan’s Motion to Vacate Entry of Dismissal

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

BACKGROUND

On November 13, 2017, Plaintiff Larisa Galstyan (“Plaintiff”) filed this action against Defendants Lusine Khachikyan (“Lusine”), Marine Khachikyan (“Marine”) and Lil Monster Clothing (“LMC”) for premises liability.

On September 3, 2019, the Court dismissed Lusine with prejudice.

On September 20, 2019, Plaintiff filed a FAC.

On April 29, 2020, the clerk entered default against Marine and LMC.

On October 21, 2021, the Court dismissed the FAC without prejudice.

On January 18, 2022, Plaintiff filed Motion to Set Aside Dismissal to be heard on September 22, 2022.

PARTY’S REQUESTS

Plaintiff requests the Court vacate dismissal as it was due to Plaintiff’s counsel’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

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

Plaintiff’s counsel submitted a declaration stating that they mistakenly calendared the hearing date incorrectly, resulting in a failure to appear. As such, Plaintiff has complied with all requirements and the Court grants the motion.

CONCLUSION

Plaintiff Larisa Galstyan’s Motion to Vacate Entry of Dismissal is GRANTED. Dismissal is vacated.

An Order to Show Cause Re: Dismissal for Failure to Resubmit Default Judgment is scheduled for October 24, 2022, 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.

Incorrectly identified on eCourt as a vacate default, not dismissal.