Judge: John C. Gastelum, Case: 19-01089072, Date: 2022-11-29 Tentative Ruling

Motion to Set Aside/Vacate Dismissal

Ruling: Off Calendar – no hearing will be held.  Plaintiffs Taylor Hill by and through her Guardian Ad Litem Michael Hill and Michael Hill’s unopposed Motion to Set Aside the Order of Dismissal is GRANTED pursuant to Code of Civil Procedure section 473(b). 

Moving party to give notice.

Plaintiffs Taylor Hill and Michael Hill (“Plaintiffs”) move to vacate and set aside the entry of dismissal pursuant to Code of Civil Procedure section 473(b).  Per Code of Civil Procedure section 473:

“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.”  (Code Civ. Proc., § 473, subd. (b).)

“Where . . . the motion is made more than six months after entry of default, the motion is not directed to the court’s statutory power under section 473 to grant relief for mistake or excusable neglect but rather is directed to the court’s inherent equity power under which it may grant relief from a default judgment where there has been extrinsic fraud or mistake.”  (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 737.)  “The term ‘extrinsic’ refers to matters outside of the issues framed by the pleadings, or the issues adjudicated.”  (Id., 738.)  “Mistake has been defined as [] the doing of an act under an erroneous conviction, which act, but for such conviction, would not have been done.”  (Ibid. [internal citations omitted].)

“The law favors resolution of cases on their merits, and because it does, any doubts about whether Code of Civil Procedure section 473 relief should be granted must be resolved in favor of the party seeking relief from default.  Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.”  (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 685 [internal citations omitted]; Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.)

“Moreover, it has been held that where the aggrieved party makes a strong showing of diligence in seeking relief after discovery of the facts, and the other party is unable to show prejudice from the delay, the original negligence in allowing the default to be taken will be excused on a weak showing.”  (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 740.)

Here, Plaintiff’s counsel made a calendaring error that caused the case to be dismissed at the OSC hearing re dismissal on August 29, 2022.  Plaintiff’s counsel was diligent in bringing the motion and brought the motion on the seventh day after the court served the order dismissing the action on the parties.  The motion is unopposed.  The parties reached a settlement agreement and it will take effect after the hearing on the minor’s compromise, which was filed with the court on May 9, 2022.  (See 30-2022-01258657-PR-OP-CJC, ROA # 2.)  The hearing on the minor’s compromise is scheduled for November 30, 2022 at 9AM in Department C07.  (See Case No. 2022-01258657, ROA # 8.)