Judge: Katherine Chilton, Case: 20STLC06031, Date: 2022-08-22 Tentative Ruling

Case Number: 20STLC06031    Hearing Date: August 22, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Michael J. Hemming

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Michael J. Hemming’s Motion to Set Aside/Vacate Dismissal is GRANTED.  The dismissal entered on January 18, 2022, as to the entire action is hereby VACATED.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 YES

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 YES

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     YES

OPPOSITION:          None filed as of August 18, 2022                [   ] Late                      [X] None

REPLY:                     None filed as of August 18, 2022                [   ] Late                      [X] None

ANALYSIS:

I.                Background

On July 21, 2020, Plaintiff Michael J. Hemming (“Plaintiff”), who is also an attorney representing himself in this action, filed a complaint against Defendants Maria Bolles and Nelson Bolles (collectively “Defendants”) for (1) breach of contract, (2) account stated, and (3) services rendered arising out of an alleged attorney client agreement between Plaintiff and Defendants.

Non-Jury Trial was set for January 18, 2022.  (7-21-20 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 12, 2022, Plaintiff filed the instant Motion to Set Aside/Vacate Dismissal (“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 his “Mistake, Inadvertence, Surprise, or Excusable Neglect or all or any combination of these.”  (Mot. pp. 1-2.)  Specifically, Plaintiff explains that “[a] clerical error occurred” and the hearing date of January 18, 2022, was not entered in Plaintiff’s calendar.  (Hemming Decl. ¶ 2.)  Plaintiff further states that the case may not have been properly calendared because it is an action against a former client and because of staffing problems during the COVID 19 pandemic.  (Ibid. at ¶¶3-4.)  Plaintiff states that he “take[s] full responsibility for the mistakes that occurred.”  (Ibid. at ¶ 4.)

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

The Court notes that Plaintiff has filed a Proof of Service of the Summons and Complaint and a Request for Entry of Default as Exhibits 1 and 2, respectively.  The Court orders Plaintiff to file these documents separately and not as exhibits to the Motion.

IV.           Conclusion & Order

For the foregoing reasons,

Plaintiff Michael J. Hemming’s Motion to Set Aside/Vacate Dismissal is GRANTED.  The dismissal entered on January 18, 2022, as to the entire action is hereby VACATED.

An Order to Show Cause re: Failure to File Proof of Service is set for November 16, 2022 at 9:30 a.m. in Department 25, Spring Street Courthouse.

Moving party is to give notice.