Judge: Jon R. Takasugi, Case: 23STCV27943, Date: 2025-01-02 Tentative Ruling

Case Number: 23STCV27943    Hearing Date: January 2, 2025    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s motion to set aside dismissal is GRANTED.  The $300 monetary sanctions imposed 9/26/24 are still due.

            On 11/14/2023, Plaintiffs Sarkis Prusalian and Anet Vartanians-Prusalian (collectively, Plaintiffs) filed suit against Mercury Casualty Company, alleging: (1) breach of contract; and (2) breach of covenant of good faith and fair dealing.

            On 9/26/2024, the Court dismissed the action for failure to prosecute.

            On 10/26/2024, Plaintiff moved to set aside the dismissal.

Discussion

Plaintiff seeks relief pursuant Civil Code section 473(b), citing attorney error and mistake. Section 473(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. . .

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 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. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.

        Here, Plaintiff’s counsel submitted a declaration taking responsibility for the dismissal explaining:

1.      I am at fault for failing to appear at the May 22, 2024, Case Management Conference in this matter. Due to my own mistake, inadvertence, surprise and neglect, I failed to properly calendar this hearing on my schedule and, as a result, I failed to appear.

2.      I am also at fault for failing to appear at the September 26, 2024, Order to Show Cause re Failure to Prosecute. Due to my own mistake, inadvertence, surprise and neglect, I again failed to properly calendar this hearing on my schedule and, as a result, I failed to appear.

3.      Both of these failures were a symptom of a larger systemic problem with my calendar scheduling. I have since taken steps to change my calendaring process and to implement safeguards to ensure that these errors are never repeated.       

(Weber Decl. ¶¶ 1-3.)

         Relief is mandatory where the moving papers are accompanied by a credible "attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect." (CCP § 473(b); see also Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 915.)

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

It is so ordered.

Dated:  January    , 2025

   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.  For more information, please contact the court clerk at (213) 633-0517.