Judge: Katherine Chilton, Case: 21STLC07766, Date: 2023-05-23 Tentative Ruling

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Case Number: 21STLC07766    Hearing Date: May 23, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Dennis P. Block & Associates, APC

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

            Plaintiff Dennis P. Block & Associates, APC’s Motion to Set Aside Dismissal and Restore Case to Civil Active List is GRANTED.  Dismissal entered on April 27, 2023, 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 May 18, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of May 18, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On October 28, 2021, Plaintiff Dennis P. Block & Associates, APC (“Plaintiff”) filed an action against Defendant Pacific Avenue Abundance, LLC (“Defendant”) for (1) breach of contract, (2) money had and received, (3) quantum meruit, (4) open book account, and (5) account stated.

            Non-Jury Trial was scheduled for April 27, 2023.  (10-28-21 Third Amended Standing Order.)  On April 27, 2023, the Court noted that no appearances were entered by Plaintiff or Defendant and dismissed the Complaint without prejudice.  (4-27-23 Minute Order.)

On April 28, 2023, Plaintiff filed the instant Motion to Set Aside Dismissal and Restore Case to Civil Active List (“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 April 27, 2023, the date set for Non-Jury Trial, the Court noted that no appearances were entered by Plaintiff or Defendant and dismissed the Complaint without prejudice.  (4-27-23 Minute Order.)

            On April 28, 2023, Plaintiff filed the instant Motion to Set Aside Dismissal and Restore Case to Civil Active List.  Plaintiff seeks to set aside dismissal of the Complaint based on an attorney’s affidavit of fault and “alternatively, upon the ground that the dismissal was the result of mistake, inadvertence, surprise and/or excusable neglect.”  (Mot. pp. 1-2.)  Specifically, Plaintiff’s counsel failed to appear at the Non-Jury Trial due to a calendaring mistake and his “own fault.”  (Block Decl. ¶ 3.)

            Plaintiff also argues that Defendant will suffer no prejudice if the dismissal is set aside.  (Mot. p. 5.)

The Court finds that Plaintiff’s motion is timely and accompanied by an attorney’s declaration of fault demonstrating that his failure to appear was the result of a mistake.  Accordingly, Plaintiff’s Motion is GRANTED, and dismissal entered on April 27, 2023, is vacated.

IV.           Conclusion & Order

For the foregoing reasons,

            Plaintiff Dennis P. Block & Associates, APC’s Motion to Set Aside Dismissal and Restore Case to Civil Active List is GRANTED.  Dismissal entered on April 27, 2023, is hereby VACATED.

            An Order to Show Cause re: Entry of Default and Default Judgment is set for July 20, 2023 at 9:30 a.m. 

Moving party is to give notice.