Judge: Katherine Chilton, Case: 20STLC08034, Date: 2022-09-19 Tentative Ruling

Case Number: 20STLC08034    Hearing Date: September 19, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Carlos Garnett

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Garnett’s Motion to Set Aside Dismissal is GRANTED.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 NONE

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 NONE

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     NONE

OPPOSITION:          None filed as of September 14, 2022                      [   ] Late                      [X] None

REPLY:                     None filed as of September 14, 2022                      [   ] Late                      [X] None

ANALYSIS:

I.                Background

On September 23, 2020, Plaintiff Carlos Garnett (“Plaintiff”) filed a complaint against Defendants Lauren Alicia Brazile (“Lauren”) and Paula Beauchamp-Brazile (“Paula”), (collectively “Defendants”) for motor vehicle and general negligence arising out of an alleged automobile accident on November 26, 2018.

Non-Jury Trial was scheduled for March 23, 2022.  (9-23-20 First Amended Standing Order.)  On March 23, 2022, the Court noted that Defendants had not been served, vacated trial, and set a hearing on Order to Show Cause Re: Failure to File Proof of Service and Re: Why Sanctions Should Not be Imposed for Plaintiff’s Failure to Comply with California Rule of Court Section 3.110(b) on May 24, 2022.  (3-23-22 Minute Order.)  On May 24, 2022, at the hearing for Order to Show Cause, the Court noted that no appearances were entered for either party and dismissed the Complaint without prejudice.  (5-24-22 Minute Order.)

On August 25, 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

The Court notes that the Notice of Motion is defective as it does not contain the name or address of the courthouse where the hearing on the Motion will take place.  Furthermore, the Notice of Motion and Motion have not been served on Defendants.  However, given that Defendants have not been served with the Summons and Complaint, the Court considers Plaintiff’s Motion.

Plaintiff’s Motion is timely.  Plaintiff seeks to set aside dismissal entered on May 24, 2022, due to Plaintiff’s counsel’s “mistake, inadvertence, surprise, or neglect.”  (Mot. p. 1.)  Specifically, Counsel explains that his “then-paralegal inadvertently failed to calendar the OSC date and failed to send the summons and complaint out for service.”  (Kim Decl. ¶ 5.)  Counsel states that he and his paralegal are responsible for failing to calendar and subsequently, appear at the hearing.  (Ibid. at ¶¶ 5-7.)  Counsel also states that “[u]pon the granting of this motion for relief, I will immediately seek to serve the summons and complaint on Defendant.”  (Ibid. at ¶ 7.)

Based on the timely request to vacate the dismissal supported by an attorney affidavit of fault, the Motion is GRANTED.  Plaintiff is ordered to serve Defendants with Summons and Complaint within ten (10) days of this order.

IV.           Conclusion & Order

For the foregoing reasons,

Plaintiff Garnett’s Motion to Set Aside Dismissal is GRANTED.

The Court’s Order dismissing Complaint on May 24, 2022, is VACATED and the Complaint is reinstated.

Plaintiff is ordered to serve Defendants within ten (10) days of notice of this Order and to file Proof of Service with the Court.

Moving party is to give notice.

The Court sets an Order to Show Cause Re: Failure to File Proof of Service and Re: Why Sanctions Should Not be Imposed for Plaintiff’s Failure to Comply with California Rule of Court Section 3.110(b) on November 10, 2022 at 9:30 a.m. in Department 25 the SPRING STREET COURTHOUSE.