Judge Jill Feeney, Case 20STCV10561 2023-02-16 Tentative Ruling

Department 30, Spring Street Courthouse

Motion for Order Vacating Entry of Dismissal filed by Plaintiff Norma Patricia Vencebi

The motion is granted.

This is the second such motion granted.

Pursuant to Code of Civil Procedure Section 473(c)(1)(A), the Court imposes a penalty in the amount of $900 against Counsel for Plaintiff. Payment is due within 30 days to the Clerk of the Court.

The Court sets another OSC Re: Dismissal for Failure to File POS/Serve Defendant Vicente Cadena, Jr. / Dismissal for Failure to File Default with Respect to Defendant Big Two Auto Part, Inc. / TSC for April 14, 2023 at 8:30 a.m.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.

This is a negligence action arising from a motor vehicle accident that occurred on March 20, 2018.

On March 16, 2020, Plaintiff Norma Patricia Vencebi filed her complaint against Defendants Vicente Cadena Jr., Big Two Auto Part Inc., and Does 1 through 50.

On August 30, 2021, the court ordered Plaintiff to file proof of service on Defendants before an Order to Show Cause hearing Re: Dismissal for Failure to File Proof of Service scheduled for April 14, 2022.

On April 14, 2022, Plaintiff failed to appear at the scheduled OSC. The court, on its own motion, dismissed the action without prejudice pursuant to Code Civ. Proc. sections 583.410 and 583.420, and Cal. Rules of Court, rules 3.110(b) and (f).

On April 27, 2022, Plaintiff filed a motion to vacate dismissal. The Court granted Plaintiff’s first motion on July 26, 2022.

On September 13, 2022, the Court again dismissed this action for Plaintiff’s failure to appear at an OSC hearing set for that day.

On September 27, 2022, Plaintiff filed a second motion set aside dismissal. No opposition has been filed.

Plaintiff seeks a court order vacating the dismissal pursuant to Code Civ. Proc. section 473 subd. (b) on the grounds that Plaintiff’s counsel unintentionally failed to calendar the April 14, 2022 OSC hearing.

Per Code of Civil Procedure, section 473, subdivision (b), a court may relieve a party or his counsel from a dismissal against him because of his “mistake, inadvertence, or excusable neglect.” When a party seeks relieve “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.” (Code Civ. Proc. section 473) And when such relief is available, “there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-982, internal quotations omitted.)

The court dismissed Plaintiff’s action on April 14, 2022. The court dismissed Plaintiff’s action pursuant to Code Civ. Proc. sections 583.410 and 583.420 for failing to appear at the April 14, 2022 OSC. Plaintiff filed her first motion to set aside dismissal on April 27, 2022. Plaintiff’s counsel testified that he unintentionally failed to calendar the OSC. On July 26, 2022, the Court granted Plaintiff’s first motion to set aside dismissal.

On September 13, 2022, Plaintiff again failed to appear for the rescheduled OSC Re: Dismissal for Failure of Plaintiff to Enter Default. The Court dismissed the action without prejudice.

Plaintiff’s counsel states that he failed to appear at the September 13, 2022 OSC because he unintentionally failed to calendar the OSC. (Fradkin Decl. ¶5.) The instant motion is identical to Plaintiff’s motion from April 2022. Orders setting aside dismissal are mandatory here because Plaintiff’s absence at the September 13, 2022 OSC was a result of Plaintiff’s counsel’s neglect. Thus, Plaintiff’s motion is granted.