Judge: Jon R. Takasugi, Case: 24STCV10552, Date: 2024-12-31 Tentative Ruling

Case Number: 24STCV10552    Hearing Date: December 31, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENATIVE RULING

Plaintiff’s motion to set aside dismissal is DENIED, WITHOUT PREJUDICE.

            On 4/26/2024, Plaintiff Wilmington Harbor Properties LP (Plaintiff) filed an unlawful detainer action against Gabirel McFarlane (Defendant.)

            On 10/8/2024, the Court dismissed Plaintiff’s action for failure to prosecute. 

On 10/16/2024, Plaintiff moved to set aside the dismissal.

Discussion

            Plaintiff moves to set aside the dismissal entered on 10/8/2024, on the grounds that the dismissal was the result of attorney error. More specifically, counsel Dennis Block submitted a declaration stating that “The case was dismissed by the Court as result of confusion and the fault of my office. The case was dismissed without prejudice on October 8, 2024, after my office inadvertently failed to submit new default package in error.” (Block Decl. ¶ 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.)

However, 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. . .

            (emphasis added.)

            As such, section 473(b) requires that the motion to set aside be accompanied by a proposed pleading, i.e., whatever missing documentation resulted in the dismissal. Here, as Plaintiff’s counsel himself acknowledges, the Court dismissed this action based on the failure to submit a new default package. However, Plaintiff’s filing is not accompanied by a proposed new default package. The failure to include this is fatal to the request here.

            Based on the foregoing, Plaintiff’s motion to set aside is denied, without prejudice.

It is so ordered.

Dated:  December    , 2024

   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.