Judge: Gary Y. Tanaka, Case: 21TRCV00532, Date: 2022-07-26 Tentative Ruling

Case Number: 21TRCV00532    Hearing Date: July 26, 2022    Dept: B

PROCEEDINGS

            Aqueela Walton v. Overton Security Services, Inc., et al.

21TRCV00532

1. Aqueela Walton’s Motion for Relief from Involuntary Dismissal     

    

   TENTATIVE RULING

    

               Aqueela Walton’s Motion for Relief from Involuntary Dismissal is denied without prejudice.

    

               Background

    

               Plaintiff filed the Complaint on July 20, 2021.  Plaintiff alleges the following facts. Plaintiff alleges various Labor Code violations occurred when Plaintiff was employed by Defendant’s company.  Plaintiff alleges the following causes of action: 1. Failure to Pay Minimum Wage; 2. Failure to Pay Overtime; 3. Failure to Pay Waiting Time Penalties; 4. Failure to Provide Adequate Meal Breaks; 5. Failure to Provide Adequate Rest Breaks; 6. Failure to Provide Complete and Accurate Wage Statements; 7. Failure to Reimburse Business Expenses; 8. Unfair Business Practices.  

    

               On March 24, 2022, Plaintiff failed to appear for the Case Management Conference and the Complaint was dismissed without prejudice.

    

               Motion to Set Aside Dismissal

    

               CCP § 473(b) states, in relevant 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.  . . .  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. . . .”

    

               Here, Plaintiff moves to set aside the dismissal pursuant to Section 473(b) pursuant to the mandatory provision based on the “mistake, inadvertence, surprise, or neglect,” of Plaintiff’s counsel.  However, the motion is denied without prejudice because Plaintiff failed to file a declaration in support of the motion.

    

               Plaintiff is ordered to give notice of this ruling.