Judge: Katherine Chilton, Case: 21STLC05082, Date: 2023-04-05 Tentative Ruling

Case Number: 21STLC05082     Hearing Date: April 5, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Stephen J. Miller

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

            Plaintiff Stephen J. Miller’s Motion to Set Aside Dismissal of Case is GRANTED.  Dismissal entered on January 9, 2023, is hereby VACATED.

Plaintiff is ordered to file proof that Defendant was served with the Summons and Complaint.

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 April 3, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of April 3, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On July 12, 2021, Plaintiff Stephen J. Miller (“Plaintiff”), in propria persona, filed an action against Defendant Western Materials, Inc. (“Defendant”), for motor vehicle and general negligence.

            Non-Jury Trial was scheduled for January 9, 2023.  (7-12-21 Third Amended Standing Order.)  On January 9, 2023, the Court noted that no appearance was entered by Plaintiff and dismissed the Complaint without prejudice.  (1-9-23 Minute Order.)

On March 8, 2023, Plaintiff filed the instant Motion to Set Aside Dismissal of Case (“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

Plaintiff is an attorney representing himself in the instant action for motor vehicle and general negligence against Defendant.  (Miller Decl. ¶ 1.)

On January 9, 2023, the date set for Non-Jury Trial, the Court noted that no appearance was entered by Plaintiff and dismissed the Complaint without prejudice.  (1-9-23 Minute Order.)

            On March 8, 2023, Plaintiff filed the instant Motion to Set Aside Dismissal of Case.  Plaintiff seeks to set aside dismissal of the Complaint “based on plaintiff’s/counsel’s attorney affidavit of fault” and “mistake, inadvertence, and excusable neglect.”  (Mot. p. 1.)  Specifically, starting around August 2022, Plaintiff began “dealing with some extremely challenging personal and family medical issues, along with staffing shortages at [his] office that caused a serious backlog” in matters handled by Plaintiff in his practice.  (Miller Decl. ¶¶ 3, 5-9.)  As a result, Plaintiff was preoccupied with the medical issues that he and his family were dealing with, “while seeking to ensure that [his] clients’ cases were being diligently handled…[and] resolved.”  (Ibid.)  Due to these personal circumstances and staffing shortages, he missed the hearing at which the case was dismissed.  (Ibid.)  Plaintiff is apologetic as he has “always sought to conduct [himself] diligently in handling all of [his] sensitive client matters” and he “was distressed to learn that [he] missed an appearance in this case.  (Ibid. at ¶¶ 4, 9.)

Plaintiff also explains that since filing the action on July 12, 2021, there were several unsuccessful attempts to serve Defendant and initiate settlement discussion; however, Defendant was finally served in December 2022.  (Ibid. at ¶ 2.) 

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 January 9, 2023, is vacated.

Plaintiff is ordered to file proof that Defendant was served with the Summons and Complaint.

IV.           Conclusion & Order

For the foregoing reasons,

            Plaintiff Stephen J. Miller’s Motion to Set Aside Dismissal of Case is GRANTED.  Dismissal entered on January 9, 2023, is hereby VACATED.

Plaintiff is ordered to file proof that Defendant was served with the Summons and Complaint.

Moving party is to give notice.