Judge: Jill Feeney, Case: 20STCV21754, Date: 2022-09-27 Tentative Ruling
Case Number: 20STCV21754 Hearing Date: September 27, 2022 Dept: 30
Department 30, Spring Street Courthouse
September 27, 2022
20STCV21754
Motion to Set Aside Dismissal filed by Plaintiff Deanna Gerald
DECISION
The motion is granted.
Trial is set for June 29, 2023 and the FSC is set for June 15, 2023.
All discovery and motion cutoff dates are to comport with the trial date of June 29, 2023. If the parties wish to mediate, they are ordered to do so prior to the FSC. The parties should not anticipate any further continuances, particularly in light of the delay caused by the failures to appear and the failure to file the motion to reinstate the case until the last possible moment. The trial date is firm and the parties should be prepared to proceed.
Moving party is to provide notice and must file proof of service of such notice within five court days after the date of this order.
Background
This is an action for premises liability, general negligence, negligence per se, assault and battery, and strict liability arising from a dog attack which took place in June 2018. Plaintiff Deanna Gerald filed her Complaint against Defendants Jennifer Rodriguez, Sylvia Iniguez, and Does 1 to 100 on June 9, 2020.
On November 23, 2021, both parties failed to appear at the Final Status Conference.
On December 7, 2021, both parties failed to appear for a non-jury trial and the Court dismissed the action pursuant to Code Civ. Pro. section 581, subd. (b)(3).
On June 3, 2022, Plaintiff filed this motion to set aside dismissal.
Summary
Moving Arguments
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 FSC and non-jury trial in this matter.
Opposing Arguments
None filed
Legal Standard
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.” A party seeking relief must file a motion to set aside dismissal “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.)
Discussion
The court dismissed Plaintiff’s action on December 7, 2021. The deadline to file a motion to set aside dismissal was June 5, 2022. Plaintiff filed the instant Motion on June 3, 2022, within the six-month deadline of the Code of Civ. Proc. section 473(b).
The court dismissed Plaintiff’s action pursuant to Code Civ. Proc. sections 581, subd. (b)(3) because no party appeared for trial following 30 days’ notice of time and place of trial. Plaintiff’s counsel states that he failed to appear at the scheduled FSC and non-jury trial because he unintentionally failed to calendar the FSC and trial dates. (Behjatnia Decl. ¶4.) The Court finds that Plaintiff’s absence at the November 23, 2021 FSC and December 7, 2021 non-jury trial was a result of Plaintiff’s counsel’s neglect and grants Plaintiff’s motion.
