Judge: Holly J. Fujie, Case: 22STCV19193, Date: 2023-02-08 Tentative Ruling

Case Number: 22STCV19193    Hearing Date: February 8, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Plaintiff

            The Court has considered the moving papers.  No opposition papers were filed.  Any opposition papers were required to have been filed and served at least nine court days before the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).

BACKGROUND

            On June 13, 2022, Plaintiff filed a complaint (the “Complaint”) alleging: (1) breach of written contract; (2) breach of oral contract; (3) fraud; and (4) violation of Business and Professions Code section 17200.  On October 5, 2022, the Court dismissed the Complaint because it had not been served on Defendants. 

On December 2, 2022, Plaintiff filed a motion to set aside or vacate the dismissal pursuant to CCP section 473, subdivision (b) (the “Motion”).

DISCUSSION

The court is empowered to relieve a party or their legal representative from a judgment, dismissal, order, or other proceeding taken against them through their mistake, inadvertence, surprise or excusable neglect.  (CCP § 473, subd. (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; 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.  (Id.)  The law favors a trial on the merits and courts therefore liberally construe section 473.  (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1477.)  Doubts in applying section 473 are resolved in favor of the party seeking relief from default.  (Id. at 1478.) 

            In support of the Motion, Plaintiff provides evidence that his attorney failed to timely serve the Complaint due to a calendaring error.  (See Declaration of Gregory B. Byberg (“Byberg Decl.”) ¶¶ 3-4.)

The Court finds that Plaintiff has shown that the dismissal of the Complaint was the result of counsel’s mistake, inadvertence or excusable neglect.  For this reason and because it is unopposed, the Court GRANTS the Motion and orders that the dismissal be vacated and that Plaintiff’s Complaint be reinstated.  (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) 

            Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

        Dated this 8th day of February 2023