Judge: Katherine Chilton, Case: 21STLC00729, Date: 2022-09-13 Tentative Ruling

Case Number: 21STLC00729    Hearing Date: September 13, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Hermozo Textile, LLC

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Hermozo Textile, LLC’s Motion to Set Aside/Vacate Dismissal is GRANTED.  The Court orders the dismissal entered on July 26, 2022 as to the entire action set aside and vacated.

An Order to Show Cause re: entry of default and default judgment is set for NOVEMBER 30, 2022 at 9:30 a.m. in DEPARTMENT 25, SPRING STREET COURTHOUSE.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 YES

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 YES

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     YES

OPPOSITION:          None filed as of September 7, 2022                        [   ] Late                      [X] None

REPLY:                     None filed as of September 7, 2022                        [   ] Late                      [X] None

ANALYSIS:

I.                Background

On January 26, 2021, Plaintiff Hermozo Textile, LLC (“Plaintiff”) filed a complaint against Defendants GK Clothings, Inc., dba Shelly, dba Shadow, dba Shelly Clothing (“GK”), Kyung A. Yoon, aka Kyung A. Kim (“Kyung”), Gang Kim, aka Kim Gwang, aka Gary Kim, aka Gary G. Kim, aka Gang Gary Kim, aka John Kim Gwang (“Kim”) for ten different causes of action.

Non-jury trial was scheduled for July 26, 2022.  (1-26-21 First Amended Standing Order.)  On July 26, 2022, the Court noted that there were no appearances by either party and dismissed the Complaint without prejudice.  (7-26-22 Minute Order.)

On July 29, 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 26, 2022, due to Plaintiff’s counsel’s “mistake, inadvertence, surprise and/or neglect leading to the above failure of appearance.”  (Mot. p. 2; Tabibi Decl. ¶ 4.)  Specifically, Counsel explains that he “inadvertently and mistakenly” failed to put the trial date on his calendar and was unaware that trial was scheduled for July 26, 2022.  (Tabibi Decl. ¶ 4.)  Thus, he neglected to appear at the trial and further, neglected to inform Plaintiff of the trial date.  (Ibid.)  Counsel further explains that he is responsible for the mistake and Plaintiff has no fault in the matter.  (Ibid. at ¶ 7.)

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 Hermozo Textile, LLC’s Motion to Set Aside/Vacate Dismissal is GRANTED.  The Court orders the dismissal entered on July 26, 2022, as to the entire action set aside and vacated.

An Order to Show Cause re: entry of default and default judgment is set for NOVEMBER 30, 2022 at 9:30 a.m. in DEPARTMENT 25, SPRING STREET COURTHOUSE.

Moving party is to give notice.