Judge: John J. Kralik, Case: 23BBCV00789, Date: 2025-02-28 Tentative Ruling
Case Number: 23BBCV00789 Hearing Date: February 28, 2025 Dept: NCB
North
Central District
|
adamaris lopez, by and through
her Guardian ad Litem, Nancy Lopez, Plaintiff, v. jesus castillo, et al., Defendants. |
Case No.: 23BBCV00789 Hearing Date: February 28, 2025 [TENTATIVE]
order RE: Motion to set aside dismissal |
BACKGROUND
A.
Allegations
Plaintiff Adamaris Lopez, by and through
her Guardian ad Litem, Nancy Lopez (“Plaintiff”) alleges that on May 16, 2022, she
was injured as a result of an automobile collision. Plaintiff alleges that
Defendant Jesus Castillo (“Castillo”) failed to yield while making a left turn
and crashed into Defendant David Ramirez’s vehicle (“Ramirez”), which then
caused Castillo to lose control of his vehicle and crash into pedestrian
Plaintiff.
The complaint, filed April 12, 2023,
alleges a single cause of action for negligence/negligence per se.
B.
Relevant Background and Motion on Calendar
On August 31,
2023, Plaintiff filed a Notice of Settlement of Entire Case.
On August 16,
2024, the Court held an Order to Show Cause re: Dismissal. The Court noted that Plaintiff failed to appear,
and Plaintiff was given proper notice of the hearing via the July 11, 2024
minute order. The Court dismissed the
complaint without prejudice.
On December 11, 2024, Plaintiff filed a
motion to vacate the dismissal. The
Court is not in receipt of an opposition brief.
Plaintiff moves to set aside the dismissal pursuant to
CCP § 473(b), pursuant to the discretionary and mandatory prongs.
Plaintiff provides the declaration
of her counsel Albert Elmassian, Esq. Mr. Elmassian states after settlement and the
filing of the minor’s compromise, there were numerous delays when Plaintiff’s
guardian sought a second opinion and shopped for different finance companies
for an interest-bearing account. (Elmassian Decl., ¶5.) He states that
Plaintiff did not make an appearance at the August 16, 2024 OSC hearing, which
resulted in the dismissal. (Id.,
¶6.) He states that when this was
brought to his attention, he immediately gathered the facts and filed this
motion. (Id., ¶7.) Counsel states that he is “profusely
apologetic to the court for [his] inability to get the very simple and mindless
task of calendaring the important dates and fulfilling [his] obligations to
appear at hearings prepared.” (Id., ¶8.)
Based on the
declaration of Mr. Elmassian, the Court finds there is substantive merit to the
motion pursuant to the mandatory prong of CCP § 473(b) based on attorney fault. Further, the motion was timely brought within
6 months of the dismissal and the motion is unopposed. Thus, the motion to vacate the dismissal is
granted.
CONCLUSION
AND ORDER
Plaintiff Adamaris
Lopez, by and through her Guardian ad Litem, Nancy Lopez’s motion to vacate the
dismissal is granted.
The Court sets a
Case Management Conference for August 28, 2025 at 8:30 a.m. The parties should be prepared to discuss
updates regarding the settlement and whether a petition for minor’s compromise
will be filed.
Plaintiff shall
provide notice of this order.
DATED: February 28, 2025 ___________________________
John
J. Kralik
Judge
of the Superior Court