Judge: Helen Zukin, Case: SC128144, Date: 2023-03-16 Tentative Ruling
Case Number: SC128144 Hearing Date: March 16, 2023 Dept: 207
Background
Plaintiffs Stephen Martin Paull and Tonie Keyton Paull
(“Plaintiffs”) bring this action against Jorge Gudino (“Defendant”), Adele
Gudino, and Mona Ahmed. Plaintiffs and the Gudinos are owners of adjacent
property sharing a property line. This action stems from allegations that
Defendants were illegally listing their property for short-term rentals. The
parties entered into a settlement agreement and on February 1, 2023, the Court
dismissed Plaintiffs’ Complaint and the Gudinos’ Cross-Complaint. Plaintiffs now
bring this motion seeking to vacate the dismissal of their Complaint, claiming
it was the result of attorney mistake or neglect. Defendant opposes the motion.
Legal Standard
Pursuant
to Code of Civil Procedure §473(b), both discretionary and mandatory relief is
available to parties when a case is dismissed. Discretionary relief is
available under the statute as “the court may, upon any terms as may be just,
relieve a party or his or her legal representative from judgment, dismissal,
order, or other proceeding taken against him or her through his or her mistake,
inadvertence, surprise, or excusable neglect.” (C.C.P. § 473(b).) Alternatively,
mandatory relief is available when “accompanied by an attorney’s sworn
affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”
(Id.) Under this statute, 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. (Id;
see also 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…[Citation.]” (Rappleyea v. Campbell¿(1994)
8 Cal. 4th 975, 981-82.)
Analysis
Plaintiffs seeks to set aside
dismissal of the Complaint on the ground that dismissal was entered due to the
mistake, inadvertence, or neglect of their counsel. Plaintiffs’ counsel has
submitted a declaration explaining the Court dismissed Plaintiffs’ Complaint
when he failed to appear at an Order to Show Cause hearing on February 1, 2023.
(Morris Decl. at ¶2.) Counsel explains he intended to appear remotely at the
February 1 hearing, but was in Palm Springs celebrating his mother’s birthday
and failed to set an alarm on his phone for the hearing. (Id.) While
counsel’s declaration contradicts the Court’s February 1, 2023, minute order
which indicates the Complaint was dismissed at the request of counsel, the
Court accepts counsel’s uncontested statement under penalty of perjury to the
contrary.
Defendant argues the Court should
deny Plaintiffs’ motion, claiming Plaintiffs’ time to bring the case to trial
under Code Civ. Proc. § 583.310 et seq. has expired. Plaintiffs argue the time
to bring a case to trial is extended during the period of conditional
settlement. Ultimately, the Court need not decide whether Plaintiffs’ time to
bring the case to trial has expired. Relief under Code Civ. Proc. § 473(b) is
mandatory when the moving party establishes, as Plaintiffs have here, that the
dismissal in question was the result of attorney error. Further, Code Civ.
Proc. § 583.360(a) only allows for dismissal for failure to bring a case to
trial “by the court on its own motion or on motion of the defendant, after
notice to the parties.” Defendant has not brought a motion under section
583.360(a), and the Court is precluded from dismissing an action pursuant to
that section without first giving the parties the opportunity to brief the
issue. The granting of Plaintiffs’ instant motion does not deprive Defendant
the opportunity to bring a motion to dismiss if he believes Plaintiffs’ time to
bring this action to trial has expired.
Plaintiffs’ motion to vacate the
February 1, 2023, dismissal of their Complaint is GRANTED.
Conclusion
Plaintiff’s motion to vacate the dismissal of their
Complaint is GRANTED.