Judge: Gary I. Micon, Case: 22CHCV00396, Date: 2024-08-08 Tentative Ruling

Case Number: 22CHCV00396    Hearing Date: August 8, 2024    Dept: F43

Dept. F43

Date: 8-8-24

Case #22CHCV00396, Jennie Medina vs. Paulo Salinas Jr.

Trial Date: N/A

MOTION TO SET ASIDE DISMISSAL

MOVING PARTY: Plaintiff Jennie Medina

RESPONDING PARTY: No response has been filed.

RELIEF REQUESTED

Plaintiff is requesting that the Court enter an order setting aside the dismissal entered against her.

RULING: Motion to set aside the dismissal is denied.

SUMMARY OF ACTION

On June 1, 2022, Plaintiff Jennie Medina (Plaintiff) filed her complaint against Defendant Paulo Salinas Jr. (Defendant). The complaint was related to breach of contract and fraud.

On August 2, 2023, Plaintiff failed to appear for a case management conference. On that date, the Court set a hearing on an Order to Show Case Re: Plaintiff’s Failure to Appear/Obtain Default Judgment, scheduled for November 20, 2023. Plaintiff also failed to appear for the Order to Show Cause hearing on November 20, so the Court dismissed the entire action without prejudice.

On May 21, 2024, Plaintiff filed this motion to set aside dismissal pursuant to CCP § 473. Plaintiff argues in her motion that her counsel failed to properly calendar the November 20 date and subsequently failed to make the appearance. Plaintiff’s motion includes a sworn declaration from her attorney, Stephen J. Horvath, indicating that he failed to calendar the hearing date and takes full responsibility for the failure to appear.

ANALYSIS

CCP Section 473(b) states as follows: 

“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…Notwithstanding any other requirements of [§ 473(b)] 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…unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”

The law favors hearings on the merits, so any doubts as to the application of CCP § 473 should be resolved in favor of the party seeking relief from default or dismissal. (See Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1139-1140.)

Horvath, Plaintiff’s attorney, claims that the failure to appear was due to his mistake, inadvertence, or neglect. He also claims that because of a calendaring failure, he did not appear at the hearings.

It appears that the blame for not appearing lies with Plaintiff’s attorney. The motion filed by Plaintiff’s attorney is in the proper form and is accompanied by a sworn declaration from Defendants’ attorney. However, the Court will note that such motions are to be filed no more than six months after the dismissal. The dismissal was entered on November 20, 2023. This motion was filed on May 21, 2024. Six months from November 20, 2023, would have been Monday, May 20, 2024. Plaintiff’s motion was filed one day late, and Plaintiff’s attorney does not say when he received the minute order nor give any reasons for why the motion was not filed sooner. (See Younessi v. Woolf (2016) 244 Cal.App.4th 1137 (the motion must be filed within a reasonable time not exceeding six month).) Furthermore, the six month deadline is mandatory and the trial court is not authorized to extend the six-month period. (See Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 344.) Therefore, Plaintiff’s motion must be denied.

Plaintiff’s motion to set aside dismissal is denied.

Moving party to give notice.