Judge: Daniel M. Crowley, Case: BC722360, Date: 2022-08-16 Tentative Ruling
Case Number: BC722360 Hearing Date: August 16, 2022 Dept: 28
Plaintiff Ricardo Samana’s Motion to
Vacate Entry of Dismissal.
Having considered the moving papers, the Court rules as
follows.
BACKGROUND
On
September 21, 2018, Plaintiff Ricardo Samana (“Plaintiff”) filed this action
against Defendant Andrew K. Wanzenberg (“Defendant”) for general negligence.
On
October 7, 2021, the Court dismissed the action, without prejudice.
On
February 16, 2022, Plaintiff filed a Motion to Vacate Dismissal to be heard on
August 16, 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
Plaintiff
submitted the motion within 6 months of dismissal. Plaintiff submitted a
declaration stating that the Plaintiff’s attorney missed the OSC, resulting in
dismissal, due to inadvertent failure to calendar the OSC. Plaintiff meets the
requirement for the Court to grant relief.
CONCLUSION
Plaintiff, Ricardo Samana’s Motion to Vacate Entry of
Dismissal is GRANTED. The Court sets a
hearing on an Order to Show Cause why the matter should not be dismissed on
account of Plaintiff’s failure to request entry of default against the
defendant on October 24, 2022 at 8:30 a.m. in Dept. 28.
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.