Judge: Daniel M. Crowley, Case: BC686465, Date: 2022-10-25 Tentative Ruling
Case Number: BC686465 Hearing Date: October 25, 2022 Dept: 28
Motion to set aside dismissal
Having considered the moving papers, the Court rules as follows. No opposing papers were filed.
BACKGROUND
On December 11, 2017, Plaintiff Jennifer Portocarrero (Plaintiff) filed a complaint against Defendants Ruby Abenueva and J. Castantino Lopez (Defendants). Plaintiff alleges general and motor vehicle negligence in the complaint arising from an automobile collision that occurred on December 25, 2015.
On November 5, 2020, the Court dismissed Plaintiff’s complaint because no one appeared at an Order to Show Cause why the complaint should not be dismissed on account of Plaintiff’s failure to file proof of service of the summons and complaint. No one communicated with the Court as to why there were no appearances on that date.
On April 9, 2021, Plaintiff filed a motion to set aside pursuant to California Code of Civil Procedure section 473, subdivision (b). On April 14, 2021, the Court granted Plaintiff’s motion and set aside the November 5, 2020, dismissal because of a calendaring mistake.
On November 1, 2021, the Court dismissed Plaintiff’s complaint because no one appeared at an Order to Show Cause and no one communicated with the Court as to why there were no appearances on that date.
On April 29, 2022, Plaintiff filed a motion to set aside pursuant to California Code of Civil Procedure section 473, subdivision (b).
Plaintiff asks the Court to set aside the November 1, 2021 dismissal because of a calendaring mistake and unavoidable issues.
Trial date is not set.
PARTY’S REQUESTS
Plaintiff requests the Court set aside the dismissal ordered on November 1, 2021 on the grounds that the dismissal was caused by attorney neglect, mistake, inadvertence and/or surprise and allowing the dismissal to stand would result in a miscarriage of justice.
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 . . . dismissal . . . 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 . . . dismissal . . . . 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 argues the reasons for Plaintiff’s failure to appear at the November 1, 2021 hearing as well as the failure to complete service within two years after the action was commenced include lack of information obtained from Defendants at the time of the incident, Defendant’s insurance company being found insolvent, unexpected delays due to losing communication with the Plaintiff, personal and work related issues experienced by Plaintiff’s counsel’s office, and the Covid-19 Pandemic. Plaintiff’s counsel declared that he failed to appear at the November 1, 2021 Order to Show Cause hearing because his office failed to calendar the hearing. (Hanassab Decl. ¶ 19, 21.)
The Court grants the motion, but sets a hearing on an Order to Show cause why the case should not be dismissed pursuant to Code of Civil Procedure section 581.210 and 583.250 (failure to serve within 3 years of filing of complaint) on November 29, 2022 at 8:30 a.m.
CONCLUSION
The motion is GRANTED. The Court sets a hearing on an Order to Show cause why the case should not be dismissed pursuant to Code of Civil Procedure section 581.210 and 583.250 (failure to serve within 3 years of filing of complaint) on November 29, 2022 at 8:30 a.m.
Plaintiff is ordered to give notice of this ruling.
Plaintiff 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.