Judge: Jon R. Takasugi, Case: 22STCV11306, Date: 2022-12-07 Tentative Ruling

Case Number: 22STCV11306    Hearing Date: December 7, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiffs’ motion to set aside dismissal is GRANTED.

            On 4/4/2022, Plaintiff Pablo Rivero (Plaintiff) filed suit against Paul Rivero and Amaya Rivero alleging: (1) elder abuse; and (2) intentional infliction of emotional distress (IIED).

            On 9/12/2020, the Court dismissed the action, without prejudice, after Plaintiffs’ counsel failed to appear for an OSC Re: Entry of Default, failed to refile a Request for Entry of Default, and had failed to take any further action in the case. 

            Now, Plaintiffs moves to set aside the dismissal.

Legal Standard

Code of Civil Procedure (CCP) section 473, subdivision (b) provides:

“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.”

Discussion

            The Court’s order dismissing this action without prejudice was entered on 9/12/2022. Thus, this motion, filed on 10/4/2022, is timely.

The mandatory relief provision of Code of Civil Procedure section 473 subs. (b) provides, in part: 

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made 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..., or (2) resulting default judgment or dismissal entered.... 

Case law instructs that so long as counsel is willing to fall on their sword, relief is mandatory. (See Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1210 (Section 473's provision for mandatory relief from a dismissal based upon a declaration of attorney error does not require a determination the error was excusable. It applies even when the attorney has no excuse. Relief is mandatory when a complying affidavit is filed, even if the attorney's neglect was inexcusable.) The only limitation is when the court finds [that] the default [or dismissal] was not in fact the attorney's fault, for example when the attorney is simply covering up for the client. (Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 991.) 

            Here, Plaintiffs’ counsel, Peter M. Cho, submitted a declaration admitting that the dismissal was the result of his inadvertent mistake: “Unfortunately, I believed in good faith that I had filed corrected requests for default before September 12, 2022 attached here as Exhibit A. Accordingly, I did not attend the hearing. When I received the minute order dismissing this action without prejudice, I checked the docket and my file and realized the requests for default were not properly filed or approved by the Court.” (Cho Decl., ¶ 3.)

            The Court accepts Mr. Cho’s explanation for the dismissal. Accordingly, relief is mandatory. (Abers, supra, 217 Cal.App.4th at p. 1210.)

            Based on the foregoing, Plaintiffs’ motion to set aside dismissal is granted.

It is so ordered.

Dated:  December    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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