Judge: Edward B. Moreton, Jr, Case: 24SMCV00106, Date: 2025-01-15 Tentative Ruling

Case Number: 24SMCV00106    Hearing Date: January 15, 2025    Dept: 205

Superior Court of California

County of Los Angeles

Beverly Hills Courthouse | Department 205

Background

This is a personal injury action arising out of a motor vehicle collision that occurred on February 28, 2023. On January 9, 2024, Plaintiffs Richard Valle, Mason Valle, a minor, by and through his Guardian ad Litem Richard Valle, and Cassidy Valle, a minor, by and through her Guardian ad Litem Richard Valle (“Plaintiffs”) filed a Complaint against Defendants Ivan Sergeyvich Voronin and Valentina Voronin (“Defendants”). Plaintiffs allege claims for (1) Motor vehicle negligence and (2) General negligence.

On July 8, 2024, the Court set an OSC re: Sanctions for failure to file proof of service for October 8, 2024.

On September 9, 2024, the Court continued the OSC re: Sanctions for failure to file proof of service from October 8, 2024 to October 23, 2024.

On October 23, 2024, the Court ordered the complaint dismissed without prejudice as Defendants had not been served and Plaintiffs failed to submit a response to the order to show cause.

On December 12, 2024, Plaintiffs filed the instant motion to vacate dismissal.

Motion to Vacate Dismissal Standard

“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.” (Code Civ. Proc., § 473 (b).)

The mandatory relief provisions require only a sworn declaration from counsel attesting to his or her “mistake, inadvertence, surprise or neglect.” No showing that the neglect was excusable is required. (Avila v. Chua (1997) 57 Cal.App.4th 860, 868-869 (“To obtain relief under the mandatory provisions, plaintiffs’ counsel need not show that his or her mistake, inadvertence, surprise or neglect was excusable. No reason need be given for the existence of one of these circumstances. 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.”)

An application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought. (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“[W]hen relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court[.]” (Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 981-82.)

Analysis

Plaintiff argues that the Court should grant mandatory relief to vacate the order of dismissal.

The Court first addresses whether this case involves a failure to prosecute, falling outside the scope of mandatory relief. In Clark v. O’Connor, 2020 Cal. Super. LEXIS 3302 at *1-*2 the court found that mandatory relief was not available for failure to prosecute where counsel failed to serve summons and complaint and did not appear for a final status conference or trial.

Here, although Plaintiffs have failed to serve Defendants and failed to file a response to the order to show cause, Plaintiffs’ counsel appeared at the hearing and the case was relatively new. This does not amount to failure to prosecute. Accordingly, the Court concludes mandatory relief is available here.

The Court next addresses whether Plaintiffs have met the requirements for mandatory relief. The Court concludes they have. Plaintiffs filed the instant motion on December 12, 2024, within six months after dismissal was ordered on October 23, 2024. Plaintiffs’ attorney’s declaration also avers that the failure to timely file a case management statement and declaration was due to attorney mistake or neglect. Counsel attests he failed to calendar the OSC’s new hearing date correctly on Plaintiff’s attorney’s calendaring system, which in turn caused plaintiff’s counsel to miss the deadline to file the Declaration regarding Plaintiffs’ due diligence in serving Defendants. (Bloeser Decl., ¶ 4.) 

Accordingly, the Court will vacate the order of dismissal pursuant to the mandatory relief provisions of Code Civ. Proc. §473(b). 

While the Court vacates the order for dismissal, Plaintiff must still respond to the Order to Show Cause why Defendants have not been served. (Tustin Plaza Partnership v. Wehage (1994) 27 Cal.App.4th 1557, 1565-1566 (where mandatory relief is granted, plaintiff must still respond to the underlying motion to dismiss).) 

Conclusion

Plaintiffs’ Motion to Vacate Dismissal is GRANTED.

The hearing on the Order to Show Cause why sanctions should not be imposed for failure to serve Defendants is set for February 11, 2025 at 8:30 a.m.

The Court grants Plaintiffs leave to file their proposed response to the OSC. That response must be filed and served by February 5, 2025.

Dated: January 15, 2025

__________________________________________

Edward B. Moreton, Jr.

Judge of the Superior Court