Judge: Katherine Chilton, Case: 21STCV02584, Date: 2023-02-16 Tentative Ruling

Case Number: 21STCV02584    Hearing Date: February 16, 2023    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.  Dismissal entered on December 14, 2022, is hereby vacated.  Trial is set for JUNE 20, 2023 at 8:30 a.m. in Department 25.

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 February 8, 2023.                       [   ] Late                      [X] None

REPLY:                     None filed as of February 8, 2023.                       [   ] 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.

On April 20, 2021, Defendant Martinez, in propria persona, filed an Answer to 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 December 7, 2021, the Court granted Plaintiff’s Motion to Set Aside/Vacate Dismissal based on Plaintiff’s counsel’s failure to calendar the meeting.  (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 26, 2022, the Court granted Plaintiff’s Motion to Set Aside/Vacate Dismissal, filed on September 8, 2022.  (9-8-22 Minute Order.)

            On October 7, 2022, Plaintiff filed a Substitution of Attorney, substituting in Counsel Vlad Shagramanov.

            On December 14, 2022, the date set for Jury Trial, the Court noted that no appearances were entered by the Plaintiff and dismissed the Complaint without prejudice.  (12-14-22 Minute Order.)

On December 20, 2022, Plaintiff filed the instant Motion to Set Aside/Vacate Dismissal (“Motion”).  The Court, on its own motion, continued the hearing on the Motion to February 16, 2023.  (12-29-22 Minute Order.)

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

Plaintiff’s Motion is timely.

Plaintiff seeks to set aside dismissal entered on December 14, 2022, due to Plaintiff’s new counsel’s inadvertent failure to schedule the trial date and make an appearance.  (Shagramanov Decl. ¶¶ 10-15.)  Specifically, counsel explains that his calendaring program malfunctioned and lost data.  (Ibid.)  After Counsel recovered the data, he inadvertently failed to add the trial date to his calendar.  (Ibid.)

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

IV.           Conclusion & Order

For the foregoing reasons,

Plaintiff Bennett Fischer’s Motion to Set Aside/Vacate Dismissal is GRANTED.  Dismissal entered on December 14, 2022, is hereby vacated.  Trial is set for JUNE 20, 2023 at 8:30 a.m. in Department 25.

Moving party is to give notice.