Judge: Gary I. Micon, Case: 22CHCV01146, Date: 2024-10-11 Tentative Ruling

Case Number: 22CHCV01146    Hearing Date: October 11, 2024    Dept: F43

MOTION FOR RELIEF FROM DISMISSAL

MOVING PARTY: Plaintiffs Yolanda Isabel Alejos and Jesus Velez

RESPONDING PARTY: No response has been filed.

RELIEF REQUESTED

Plaintiffs have requested relief from the dismissal entered on February 9, 2024.

RULING: Motion is granted.

SUMMARY OF ACTION

Plaintiffs Yolanda Isabel Alejos and Jesus Velez (Plaintiffs) filed this personal injury action on November 16, 2022. Defendant Marisol Castro Hernandez (Defendant) was served on October 26, 2023, with proof of service filed on October 27, 2023.

After Plaintiffs failed to appear at the Case Management Conference scheduled for December 28, 2023, an OSC re: Failure to Appear and new Case Management Conference were set for February 9, 2024. Plaintiffs’ counsel indicates that it was due to his calendaring error that Plaintiffs did not appear at the December 28 hearing. He again made a calendaring error and failed to appear at the February 9 hearing.

Due to counsel’s failure to appear at those two hearings, the Court dismissed the action on February 9, 2024. Plaintiffs are now requesting that the Court grant relief from the dismissal due to Plaintiffs’ counsel’s excusable neglect and surprise.

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.) 

Younger, Plaintiffs’ counsel, 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 Plaintiffs’ counsel. The motion filed by Plaintiffs’ counsel is in the proper form and is accompanied by a sworn declaration from Plaintiffs’ counsel. The motion was also timely filed, as the dismissal occurred on February 9, 2024, and Plaintiffs filed this motion on July 24, 2024, which is within six months of the dismissal.

Accordingly, relief should be granted. The Court grants Plaintiffs’ motion for relief from dismissal.

CONCLUSION

The motion for relief from dismissal is granted. The Court will set a new date for the Case Management Conference at the hearing on this motion.

Moving party to give notice.