Judge: Katherine Chilton, Case: 20STLC05997, Date: 2022-08-16 Tentative Ruling

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Case Number: 20STLC05997     Hearing Date: August 16, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Dong Yoong Kwak

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Kwak’s Motion to Set Aside Dismissal is GRANTED.  An Order to Show Cause re: Failure to File Proof of Service and Why Sanctions Should Not Be Imposed for Failure to Comply with Cal. Rule of Court, Rule 3.110(b) is set for October 13, 2022 at 9:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  .

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 NO

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 NO

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     NO

OPPOSITION:          None filed as of August 11, 2022                [   ] Late                      [X] None

REPLY:                     None filed as of August 11, 2022                [   ] Late                      [X] None

ANALYSIS:

I.                Background

On July 20, 2020, Plaintiff Dong Yoong Kwak (“Plaintiff”) filed a complaint against Defendant Katherine Guiterrez (“Defendant”) for motor vehicle and general negligence arising out of an automobile accident between Plaintiff and Defendant.

A Non-Jury Trial was set for January 18, 2022.  (7-20-20 First Amended Standing Order.)  On January 18, 2022, the Court noted that no appearances were entered by either party and thus dismissed the Complaint without prejudice.  (1-18-22 Minute Order.)

On July 18, 2022, Plaintiff filed the instant Motion to Set Aside/Vacate Dismissal (“Motion”).  On August 12, 2022, Plaintiff filed a Supplemental Brief in Support of Motion.

No opposition was filed.

II.              Legal Standard

Pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief is available to parties when a case is dismissed.  Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  (Code of Civ. Proc. § 473(b).)  Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”  (Ibid.)  Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.  (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“‘[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.)

III.            Discussion

Plaintiff’s Motion is timely.  Plaintiff seeks to set aside dismissal entered on January 18, 2022 due to Plaintiff’s counsel “excusable mistake, neglect and inadvertence.”  (Mot. p. 6.)  Specifically, Counsel explains that he has been handling three different cases for Plaintiff.  (Kim Decl. ¶¶ 3-7.)  In March of 2021, Counsel himself was involved in a motor vehicle accident, which caused him to require medical attention.  (Ibid. at ¶¶ 9-10.)  Given that Counsel was handling several pending actions for Plaintiff and managing his own health problems that arose out of a motor vehicle accident, Counsel made a calendaring mistake and failed to appear at the trial.  (Mot. pp. 7-8.)

Based on the timely request to vacate the dismissal supported by an attorney affidavit of fault, the Motion is GRANTED.

IV.           Conclusion & Order

For the foregoing reasons, Plaintiff Kwak’s Motion to Set Aside Dismissal is GRANTED.

An Order to Show Cause is set for October 13, 2022 at 9:30 a.m. in Department 25 re: Failure to File Proof of Service and Why Sanctions Should Not Be Imposed for Failure to Comply With Rule of Court 3.110(b). 

Moving party is ordered to give notice.