Judge: Katherine Chilton, Case: 21STCV02584, Date: 2022-09-26 Tentative Ruling

Case Number: 21STCV02584     Hearing Date: September 26, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Bennett Fischer

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Bennett Fischer’s Motion to Set Aside/Vacate Dismissal is GRANTED.  The Court orders the July 18, 2022 dismissal as to the entire action be set aside and vacated.

Furthermore, the Court orders Plaintiff to file a Substitution of Attorney Form and serve it on Defendants.

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))                     NOT OK[1]

OPPOSITION:          None filed as of September 21, 2022                      [   ] Late                      [X] None

REPLY:                     None filed as of September 21, 2022                      [   ] Late                      [X] None

ANALYSIS:

I.                Background

On January 21, 2021, Plaintiff Bennett Fischer (“Plaintiff”), filed an action against Ashley Meyers (“Meyers”) and Daniel Martinez, dba Snakepitt Gaming and Domino City Gaming (“Martinez”), (collectively “Defendants”) for conversion arising out of an alleged conversion of Plaintiff’s property.

On April 20, 2021, Defendant Martinez, in propria persona, filed an Answer, denying all allegations in the Complaint.

The action was transferred from unlimited jurisdiction to limited jurisdiction on May 18, 2021.  (5-18-21 Notice of Reclassification.)

On September 21, 2021, at an Order to Show Cause Re: Failure to File Proof of Service, the Court noted that no appearances were entered by either party and thus, dismissed the Complaint without prejudice.  (9-21-21 Minute Order.)

On November 1, 2021, Plaintiff filed a Motion to Set Aside/Vacate Dismissal, based on Plaintiff’s counsel’s failure to calendar the hearing.  On December 7, 2021, the Court granted Plaintiff’s Motion.  (12-7-21 Minute Order.)

            On May 23, 2022, pursuant to Plaintiff’s Request for Entry of Default, the Court entered default against Defendant Meyers.  (5-23-22 Request.)

            On July 18, 2022, at an Order to Show Cause Re: Entry of Default, the Court noted that no appearances were entered by either party and thus, again dismissed the Complaint without prejudice.  (7-18-22 Minute Order.)

On September 8, 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 July 18, 2022, due to Plaintiff’s former counsel’s failure to calendar the hearing.  (Shafie Decl. ¶ 9.)  Specifically, counsel explains that he and his employees contracted the COVID-19 virus and the office had temporary staff, who did not calendar the matter.  (Ibid.)

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

In the Motion, Plaintiff states that the case has been transferred from Counsel Shafie to Counsel Shagramanov.  (Mot. p. 2.)  However, it does not appear that Counsel Shafie and Counsel Shagramanov are employed at the same law firm, and no Substitution of Attorney has been filed with the Court.

The Court orders Plaintiff to file a Substitution of Attorney Form and serve it on Defendants.

IV.           Conclusion & Order

For the foregoing reasons,

Plaintiff Bennett Fischer’s Motion to Set Aside/Vacate Dismissal is GRANTED.  The Court orders the July 18, 2022 dismissal as to the entire action be set aside and vacated.

Trial is set for December 14, 2022 at 8:30 a.m. in DEPARTMENT 25, SPRING STREET COURTHOUSE.

Furthermore, the Court orders Plaintiff to file a Substitution of Attorney Form and serve it on Defendants.

Moving party is to give notice.