Judge: Katherine Chilton, Case: 21NWLC29767, Date: 2023-05-03 Tentative Ruling
Case Number: 21NWLC29767 Hearing Date: May 3, 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 Motion to Vacate Dismissal filed by Plaintiff MG Terramonte Apartments LP is GRANTED. Dismissal entered on August 12, 2022, is hereby VACATED.
SERVICE:
[ ] Proof of Service Timely Filed (CRC, rule 3.1300) OK
[ ] Correct Address (CCP §§ 1013, 1013a) OK
[ ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK
OPPOSITION: None filed as of May 1, 2023. [ ] Late [X] None
REPLY: None filed as of May 1, 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 Judge Katherine Chilton in 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.)
On March 30, 2023, the Court noted that Plaintiff had not filed a proper notice of motion and continued the hearing to allow Plaintiff an opportunity to file the notice. (3-30-23 Minute Order.) On the same day, Plaintiff filed a Notice and Proof of Service of the Notice and 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.)
On March 30, 2023, the Court found that Plaintiff’s motion is timely and accompanied by Plaintiff’s counsel’s declaration of fault. (3-30-23 Minute Order.)
However, the Court noted 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. (Ibid.) Moreover, 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. (Ibid.; Cal. Rules of Court, rule 3.1110(a)-(b).) The Court also noted that although Defendants had not been served with the moving papers, pursuant to Code of Civil Procedure § 1010, Plaintiff did not have to serve Defendants as default had been entered against them. (Ibid.) Accordingly, the Court continued the hearing and ordered Plaintiff to file a notice of motion. (Ibid.)
On the same day, Plaintiff filed a proper Notice of Motion, as well as proof that Defendants were served with the Notice and the Motion by mail on March 30, 2023.
The Court finds that Plaintiff has satisfied all the requirements for the instant Motion. Plaintiff’s Motion to Set Aside/Vacate Dismissal is GRANTED.
IV. Conclusion & Order
For the foregoing reasons, the Motion to Vacate Dismissal filed by Plaintiff MG Terramonte Apartments LP is GRANTED. Dismissal entered on August 12, 2022, is hereby VACATED.
Moving party is to give notice.