Judge: James L. Crandall, Case: 20-1153573, Date: 2022-10-20 Tentative Ruling

Motion to Set Aside/Vacate Dismissal

Plaintiff Luis Fortis’ Motion to Set Aside Dismissal filed on 6-8-22 under ROA 37 is GRANTED.

Code Civ. Proc. § 473(b) states 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 purpose of the mandatory relief is “to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257 (internal quotes omitted).)

Where an “attorney affidavit of fault” is filed, there is no requirement that the attorney's mistake, inadvertence, etc. be excusable. Relief must be granted even where the default resulted from inexcusable neglect by defendant's attorney. (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal. App. 4th 868, 897 (disapproved on other grounds in Even Zohar Const. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 845) (attorney opined service was defective on grounds having no arguable foundation in law); see also Vaccaro v. Kaiman (1998) 63 Cal. App. 4th 761, 770.)

Doubtful cases are usually resolved in favor of granting relief: “Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233; see Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 696.)

The court may deny relief if it finds the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise or neglect and the attorney where attorney is attempting to cover up for a client. (Code Civ. Proc.§ 473(b).) The trial court may also deny the motion if it finds that the attorney's declaration of fault is not credible. (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 915.)

Code Civ. Proc., § 581d states: “A written dismissal of an action shall be entered in the clerk's register and is effective for all purposes when so entered. ¶ All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes, and the clerk shall note those judgments in the register of actions in the case.”

Here, on 8-16-21, the Court dismissed the case via an unsigned Minute Order. Plaintiff seeks to vacated this dismissal/order. Plaintiff contends that vacating the dismissal is mandatory because the failure to appear was based on the mistake of counsel. (Code Civ. Proc., § 473, subd. (b).)

Plaintiff provides the declaration of Shahin Kariman states: “The failures to appear herein, including on July 12, 2021 and on August 16, 2021, referenced above, which gave rise to the Dismissal and Order of Dismissal herein, were mine, were mine alone, and were due entirely to my mistake, inadvertence, surprise, or neglect. I unintentionally failed to calendar or appear for any of these matters.” (Kariman Decl. ¶ 5.)

Plaintiff further contends that the Motion is timely because the Minute Order was not a proper dismissal due to the fact that it was not signed. Thus, Plaintiff contends that the Motion was filed within six months because the dismissal was not proper to start the six months.

Defendant does not dispute that the dismissal was not proper but contends that Plaintiff’s Motion was untimely because he did not bring it within a reasonable time. Although Plaintiff failed to argue that he brought the Motion within a reasonable time, the Court finds that bringing the Motion in under 10 months is a reasonable time.

Defendant further contends that he will be prejudiced because Plaintiff’s claims are not barred by the statute of limitations and Defendant thought he had finality with the dismissal. However, given the strong policy favoring a trial on the merits, the Court finds the prejudice to Plaintiff based on his attorney’s mistake, inadvertence, surprise, or neglect outweighs any prejudice to Defendant.

Based on the foregoing, the Court GRANTS Plaintiff Luis Fortis’ Motion to Set Aside Dismissal filed on 6-8-22 under ROA 37.

Plaintiff to give notice.

Future hearing dates

No future hearing dates