Judge Jill Feeney, Case 21STCV16963 2023-02-01 Tentative Ruling

Department 30, Spring Street Courthouse

Motion for Order Vacating Entry of Dismissal filed by Plaintiff Caroline Chika Osuji

The motion is granted.

The Court imposes a penalty of $250 pursuant to California Code of Civil Procedure Section 473(c)(1)(A).This amount is payable to the Clerk of the Court within 30 days after the date of this order.

Plaintiff is ordered to separately file each proof of service within 30 days after the date of this order.

The Court sets an OSC Re: Dismissal for Failure to Enter Default/TSC for April 20, 2023.

Moving party to provide notice to all Defendants.

This is an action for negligence arising from a vehicle collision which took place in May 2019. Plaintiff Caroline Chika Osuji filed her Complaint against Defendants Michael Catone, Anthony Campillo, and MDS Electric, Inc. on May 5, 2021.

On November 2, 2022, the Court dismissed this action pursuant to Code Civ. Proc., section 581(b)(3) for failure to appear for trial following 30 days’ notice of the time and place of trial.

On November 14, 2022, Plaintiff filed the instant motion to set vacate dismissal.

Plaintiff seeks to set aside dismissal on the grounds that Plaintiff’s counsel failed to calendar the lawsuit. Counsel also represents that Defendants were served in September 2022.

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.) A proposed answer, motion, or other pleading proposed to be filed in the action was required to be served and filed with the motion to set aside the default and default judgment. (Code Civ. Proc. section 473 subd. (b))

The Court dismissed Plaintiff’s action on November 2, 2022 on the grounds that the parties failed to appear for the Final Status Conference on October 19, 2022 and thereafter failed to appear for the Non-Jury trial. The Court also noted that there was no proof that Defendants had been served with the Summons and Complaint in this action.

Plaintiff’s counsel testifies that his legal assistant failed to calendar this lawsuit. (Ogbogu Decl., ¶5.) Counsel also represents that Defendants were personally served in September 2022. (Id., ¶7.) Counsel attached Proof of Service to the motion. (Exhibit A.)

The Court finds that Plaintiff failed to appear for the FSC and trial due to her counsel’s neglect. Plaintiff also failed to file proof of service due to her counsel’s neglect. The motion is granted.