Judge Jill Feeney, Case 21STCV07635 2023-04-03 Tentative Ruling

Department 30, Spring Street Courthouse

Motion to Set Aside Dismissal filed by Plaintiff Cliff Pleggenkulke

The motion is granted.

Pursuant to Code of Civil Procedure Section 473(c)(1)(A) the Court imposes a penalty of $500. This is payable to the Clerk of the Court within 20 days after the date of this order.

The Court sets an OSC Re: Dismissal for Failure to Serve Defendants within the Statutory Two-Year Period and File Proof of Service pursuant to CCP Sections 581(g), 583.410, 583.420(a)(1) and California Rule of Court Rule 3.110(f) for June 9, 2023 at 8:30 a.m.

Moving party to provide notice.

This is an action for negligence arising from a vehicle collision which took place in March 2019. Plaintiff Cliff Pleggenkulke filed his Complaint against Defendants Michael and David Finch on February 26, 2021.

On August 20, 2022 the Court dismissed the case pursuant to Code Civ. Proc., section 581(b)(3) after both parties failed to appear for trial.

On November 28, 2022, Plaintiff filed this motion to set aside dismissal.

Plaintiff seeks a court order setting aside dismissal pursuant to Code Civ. Proc. section 473 subd. (b) on the grounds that Plaintiff’s counsel unintentionally failed to appear at the non-jury trial because he inadvertently failed to calendar the trial.

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 August 20, 2022. Plaintiff filed the instant Motion on November 28, 2022, within the six-month deadline of the Code of Civ. Proc. section 473(b).

he court dismissed Plaintiff’s action pursuant to Code Civ. Proc. sections 581, subd. (b)(3) because Plaintiff failed to appear for both the FSC and trial. Plaintiff’s counsel testifies that he missed both the FSC and trial because the appearances were not calendared due to staff turnover issues. (Panah Decl.) The evidence shows that the case was dismissed because Plaintiff’s Counsel inadvertently failed to calendar the FSC and trial. Because the dismissal was caused by Plaintiff’s Counsel’s neglect, the motion is granted.