Judge: Joseph Lipner, Case: 23STCV13937, Date: 2023-09-05 Tentative Ruling

Case Number: 23STCV13937    Hearing Date: September 5, 2023    Dept: 72

SUPERIOR COURT OF CALIFORNIA 

COUNTY OF LOS ANGELES 

DEPARTMENT 72 

TENTATIVE RULING 

PROCEEDINGS:¿     MOTION TO VACATE THE DISMISSAL  

¿ 

MOVING PARTY:¿  Plaintiff Creditors Adjustment Bureau

MOTION TO VACATE THE DISMISSAL 

TENTATIVE RULING 

Plaintiff’s unopposed motion to vacate the dismissal under CCP § 473(b) is GRANTED.

BACKGROUND 

            On June 16, 2023, Plaintiff Creditors Adjustment Bureau (“Plaintiff”) filed a complaint against Defendant Whitestone Construction, Inc. (“Defendant”) for a breach of contract cause of action. 

            On June 26, 2023, Plaintiff’s counsel filed a mistakenly executed Request for Dismissal that was created by his secretary under the belief that Defendant had paid the balance due.  On July 7, 2023, the Court dismissed the entire action pursuant to the Request for Dismissal.

On July 19, 2023, Plaintiff filed the instant motion for the dismissal to be set aside.    

The Court notes Defendant had not appeared in the action prior to its July 7, 2023 dismissal.  (Code Civ. Proc. § 1014.)  The instant motion does not include a proof of service indicating the motion was served on Defendant; however, notice of motion need not be served upon any party who has not appeared in the action. (Code Civ. Proc. § 1010.)

Grounds for Motion 

Plaintiff moves to vacate the dismissal under CCP § 473(b) on the grounds that the action was dismissed as a result of its attorney’s mistake and inadvertence. 

LEGAL STANDARD 

“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.” (Code Civ. Proc., § 473(b).)  

The court has broad discretion to vacate the entry of default, default judgment or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure and within the set time limits. Pursuant to CCP section 473(b), a motion to set aside/vacate cannot be brought more than 6 months after the entry of default and must be made within a “reasonable time.” 

CCP section 473(b) provides that when an application for relief is made no more than six months after entry of dismissal and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, the court shall set aside a dismissal entered against the attorney’s client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. (Code Civ. Proc., § 473(b).) “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.” 

Where an “attorney¿affidavit of fault” is filed, there is no requirement that the¿attorney's¿mistake, inadvertence, or neglect be excusable. Relief¿must¿be granted even where the default or dismissal resulted from¿inexcusable¿neglect by defendant's¿attorney. (Robert E. Weil, et al., California Practice Guide: Civil Procedure Before Trial ¶ 5:495 (2018).) 

DISCUSSION 

Plaintiff moves to vacate the dismissal under CCP § 473(b) on the grounds that the action was dismissed as a result of its attorney’s mistake and inadvertence.  Plaintiff’s counsel admits that the execution of the Request for Dismissal was the “result of [his] own mistake and inadvertence.” (Declaration of Eric J. Jun, ¶ 4.) Counsel attests that his secretary had misunderstood a notation in the file, which caused her to believe the Defendant had paid the alleged debt.  (Id., ¶ 3.)   Counsel declares this statement to be true under the penalty of perjury in the State of California.  (Id., at 6.)  Further, as required by statute, the motion was within the 6 months of the order.  Therefore, Counsel attests that he was mistaken about the facts of the litigation and has filed an affidavit of fault in support of his mistake.

CONCLUSION 

Plaintiff submitted an attorney’s sworn affidavit attesting to his mistake, inadvertence, surprise, or neglect.  Accordingly, Plaintiff’s motion to vacate the dismissal under CCP § 473(b) is GRANTED.