Judge: Daniel M. Crowley, Case: BC686465, Date: 2022-08-23 Tentative Ruling
Case Number: BC686465 Hearing Date: August 23, 2022 Dept: 28
Plaintiff Jennifer Portocarrero’s Motion to Vacate Entry of Dismissal.
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On December 11, 2017, Plaintiff Jennifer Portocarrero (“Plaintiff”) filed this action against Defendants Ruby Abenueva (“Abenueva”) and J. Constantino Lopez (“Lopez”) for motor vehicle and general negligence.
On November 1, 2021, the Court dismissed the action, without prejudice.
On May 3, 2022, Plaintiff filed a Motion to Vacate Dismissal to be heard on July 5, 2022. The Court continued the hearing on the motion to August 23, 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 previously granted a continuance to give Plaintiff time to file an ex parte application with Department 1 for an order filing the motion nunc pro tunc in order to abide by the required 6-month deadline. The Court has no record of such a motion being made or an order being granted. As such, the Court denies the motion.
CONCLUSION
Plaintiff George Barnes’s Motion to Vacate Entry of Dismissal is DENIED.
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.