Judge: Daniel M. Crowley, Case: BC699365, Date: 2022-09-22 Tentative Ruling
Case Number: BC699365 Hearing Date: September 22, 2022 Dept: 28
Plaintiff Johnny Gutierrez’s Motion to Vacate Entry of Dismissal
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On March 23, 2018, Plaintiff Johnny Gutierrez (“Plaintiff”) filed this action against Defendants Rydell Automotive Group (“RAG”), Rydell Automotive Group, Inc. (“RAG Inc.”), Rydell Enterprises, LLC (“RE”) and FCA US LLC (“FCA”) for violation of song Beverly consumer warranty act—breach of express warranty, breach of implied warranty, negligence, strict liability, violation of consumer legal remedies act, breach of implied in fact contract, breach of implied covenant of good faith and fair dealing, unfair business practices business and professions code §§ 17200 and intentional misrepresentation.
On November 20, 2020, Plaintiff filed a FAC.
On February 4, 2022, the Court dismissed the case, without prejudice.
On June 30, 2022, Plaintiff filed a Motion to Vacate 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 Johnny Gutierrez’s Motion to Vacate Entry of Dismissal is GRANTED. Dismissal is vacated.
An Order to Show Cause Re: Dismissal for Failure to File Proof of Service of First Amended Complaint on the Rydell Defendants 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.