Judge: Katherine Chilton, Case: 21NWLC29767, Date: 2023-03-30 Tentative Ruling

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Case Number: 21NWLC29767    Hearing Date: March 30, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff MG Terramonte Apartments LP

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

The hearing on the Motion to Vacate Dismissal filed by Plaintiff MG Terramonte Apartments LP is CONTINUED to MAY 3, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  Plaintiff is ordered to file supplemental papers addressing the issues discussed herein at least 16 court days before the next scheduled hearing.

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 March 28, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of March 28, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On August 6, 2021, Plaintiff MG Terramonte Apartments LP (“Plaintiff”) filed an action against Defendants Araceli Medina (“Medina”) and Joseph Gutierrez (“Gutierrez”) (collectively “Defendants”) for breach of contract and common counts.

On October 7, 2021, based on Plaintiff’s request, the Court entered default against Defendants Medina and Gutierrez.  (10-7-21 Request for Default.)  The Court also dismissed Does 1 to 20.  (12-8-21 Request for Dismissal.)

On August 12, 2022, at an Order to Show Cause Re: Failure to File Proof of Service and Failure to File Default Judgment Pursuant to CRC 3.740, the Court noted that no appearance was entered by Plaintiff or Defendants and dismissed the Complaint without prejudice.  (8-12-22 Minute Order.)

On September 8, 2022, Plaintiff filed the instant Motion to Vacate Dismissal (“Motion”).  On October 20, 2022, the Court determined that the case is “not a collections hubs case” and transferred the case to Department 1 for reassignment.  (10-20-22 Minute Order.)  The Court also placed the Motion to Vacate Dismissal off calendar.  (Ibid.)  On October 28, 2022, the Court reassigned the case to Department 25 at the Spring Street Courthouse.  (10-28-22 Minute Order.)

On February 24, 2023, Plaintiff served a Notice of Continued Motion on Defendants, indicating that the Motion had been scheduled for March 30, 2023, in Department 25 at the Spring Street Courthouse.  (2-24-23 Notice of Continued Motion.)

            No opposition has been 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

On August 12, 2022, at an Order to Show Cause Re: Failure to File Proof of Service and Failure to File Default Judgment Pursuant to CRC 3.740, the Court noted that no appearance was entered by Plaintiff or Defendants and dismissed the Complaint without prejudice.  (8-12-22 Minute Order.)

            On September 8, 2022, Plaintiff filed the instant Motion to Set Aside/Vacate Dismissal.  Plaintiff seeks to set aside dismissal of the Complaint on the ground that dismissal was entered “[d]ue to PLAINTIFF’s counsel’s mistake and inadvertence.”  (Mot. p. 2.)  Specifically, Plaintiff’s counsel made a calendaring error and did not appear at the hearing.  (Hettena Decl. ¶ 2.)  Counsel “sincerely apologize[s]” and requests that the Court vacate the dismissal.  (Ibid. at ¶ 3.)

The Court finds that Plaintiff’s motion is timely and accompanied by Plaintiff’s counsel’s declaration of fault.

However, the Court notes that Plaintiff has not complied with California Rules of Court, rule 3.1112, which requires a motion to consist of a notice, the motion, and a memorandum in support of the motion, as no notice has been filed.  Furthermore, the notice “must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order” and other pertinent information about the date, time, location of the hearing.  (Cal. Rules of Court, rule 3.1110(a)-(b).)

            The Court also notes that Plaintiff has not filed proof that Defendants were served with the moving papers; however, no notice “other than amendments to the pleadings, or an amended pleading, need to be served upon any party whose default has been duly entered or who has not appeared in the action or proceeding.”  (Code of Civ. Proc. § 1010.)

Accordingly, the Court continues the hearing on the Motion and orders Plaintiff to file a notice of motion.

IV.           Conclusion & Order

For the foregoing reasons,

The hearing on the Motion to Vacate Dismissal filed by Plaintiff MG Terramonte Apartments LP is CONTINUED to May 3, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  Plaintiff is ordered to file supplemental papers addressing the issues discussed herein at least 16 court days before the next scheduled hearing.

Moving party is to give notice.