Judge: Jon R. Takasugi, Case: 23STCV30382, Date: 2025-02-24 Tentative Ruling

Case Number: 23STCV30382    Hearing Date: February 24, 2025    Dept: 17

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiffs’ motion to set aside is GRANTED. Plaintiffs are to refile their default judgment packet within 10 days of entry of this order.

            On 12/13/2023, Plaintiffs Gregg Howard and Michele Simon (collectively, Plaintiffs) filed suit against Daniel Thomsen (Defendant), alleging breach of contract.

            On 7/25/2024, the Court dismissed the Complaint, without prejudice, for failure to prosecute.

            On 1/14/2025, Plaintiffs moved to set aside the dismissal.

Discussion

            Plaintiffs argue that dismissal was the result of their attorney’s illness and error. 

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.

            Here, Plaintiffs’ case was dismissed on 7/25/2024, and Plaintiffs moved to set aside on 1/14/2025. As such, Plaintiffs’ motion is timely. Moreover, Plaintiffs’ motion is accompanied by a declaration attesting to the fact that he was diagnosed with lymphoma in May 2024, and was negligent in his practice until he concluded chemotherapy in November 2024. (Shomloo Decl.)  Plaintiffs’ motion included a memorandum of points and authorities in support of Plaintiffs’ claim.

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, Plaintiffs’ motion to set aside is granted. Plaintiffs are to refile their default judgment packet within 10 days of entry of this order.

It is so ordered.

Dated:  February    , 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.