Judge: Katherine Chilton, Case: 21STLC01997, Date: 2022-12-19 Tentative Ruling

Case Number: 21STLC01997     Hearing Date: December 19, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Jones & Jones Management Group, Inc.

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

            Plaintiff Jones & Jones Management Group, Inc.’s Motion to Set Aside/Vacate Dismissal is GRANTED.  Dismissal entered on September 7, 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 December 13, 2022.                     [   ] Late                      [X] None

REPLY:                     None filed as of December 13, 2022.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On March 10, 2021, Plaintiff Jones & Jones Management Group, Inc., dba Jones & Jones Communities, Inc. (“Plaintiff”), filed an action against Defendant Christopher Douglas, aka Christopher Jabaar Douglas (“Defendant”), for breach of contract and common counts.

            Non-Jury Trial was scheduled for September 7, 2022.  (3-10-21 First Amended Standing Order.)  On September 7, 2022, the Court noted that no appearances were entered for Plaintiff or Defendant and dismissed the Complaint without prejudice.  (9-7-22 Minute Order.)

On October 6, 2022, Plaintiff filed proof demonstrating that Defendant had been personally served with the pleadings.  (10-6-22 Proof of Personal Service.)

On October 27, 2022, the Court rejected Plaintiff’s Request for Entry of Default against Defendant, given that the case had been dismissed.  (10-27-22 Notice of Rejection.)

            On November 18, 2022, Plaintiff filed the instant Motion for Order to Vacate and Set Aside Dismissal (“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 September 7, 2022, the date set for Non-Jury Trial, the Court noted that no appearances had been entered by Plaintiff or Defendant and dismissed the Complaint without prejudice.  (9-7-22 Minute Order.)

            On November 18, 2022, Plaintiff filed the instant Motion for Order to Vacate and Set Aside Dismissal.  Plaintiff seeks to set aside dismissal of the Complaint on the ground that dismissal was entered because of “counsel’s mistake, inadvertence, surprise, or neglect.”  (Mot. p. 2.)  Specifically, Plaintiff’s Counsel did not receive notice of the trial date and, therefore, did not enter it into the calendaring system.  (Wolf Decl. ¶¶ 8-9.)  As a result, she was not notified of any upcoming court dates or deadlines and did not appear at the trial set for September 7, 2022.  (Ibid.)  Counsel learned of the dismissal when Plaintiff’s Request for Entry of Default against Defendant was rejected by the Court.  (Ibid.)  Counsel accepts full responsibility for not appearing at the trial, for failing to file proof of service prior to the trial, and not monitoring the Court docket more closely.  (Ibid. at ¶¶ 10-11.)

The Court finds that Plaintiff’s motion is timely and accompanied by an attorney’s declaration of fault.  Accordingly, Plaintiff’s Motion is GRANTED, and dismissal entered on September 7, 2022, is vacated.

Plaintiff also requests that the Court enter default against Defendant and has attached the previously filed Form CIV-100 to the Motion.  (Mot. p. 3; Ex. B.)  Plaintiff may pursue default by filing a new Form CIV-100 with the Court.

IV.           Conclusion & Order

For the foregoing reasons,

            Plaintiff Jones & Jones Management Group, Inc.’s Motion to Set Aside/Vacate Dismissal is GRANTED.  Dismissal entered on September 7, 2022, is hereby vacated.

            An Order to Show Cause re: Entry of Default and Default Judgment is set for March 16, 2023 at 9:30 a.m. in Department 25, Spring Street Courthouse.

Moving party is to give notice.