SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. BACKGROUND 

On November 25, 2020 Plaintiff Shelby Hesselbein (“Plaintiff”) filed this action against Defendant Prima Healthcare (“Defendant”) for intentional tort. 

On May 25, 2022, the Court dismissed the Complaint without prejudice after there were no appearances at the non-jury trial or final status conference. 

On November 23, 2022, Plaintiff filed the instant motion to set aside the dismissal under CCP § 473(b). 

II. LEGAL STANDARD 

CCP § 473(b) provides that a court may “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.” (CCP § 473(b).)   

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (CCP § 473(b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]). “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.)   

III. DISCUSSION 

Plaintiff’s counsel provides his declaration attesting to the fact that the dismissal was taken due to his neglect. He attests that he neglected to enter the case and calendar the deadlines into his case software management; the case fell through the cracks, and he neglected to serve the defendant; he failed to appear at the FSC and trial; he received the dismissal order in June 2022, but due to a series of events such as trial, a sick family member, leaving the country, a death in the family, and contracting Covid-19, he filed this motion in November, but still within the mandatory six-month period. (See Jersiat Decl.) Based on the above, the Court finds that the dismissal was taken due to Plaintiff’s attorney’s neglect and the motion was timely filed within six-months. 

IV. CONCLUSION 

Based on the foregoing, the motion to set aside the May 25, 2022 dismissal is GRANTED and the action is reinstated.  Trial is set for December 5, 2023 at 8:30 a.m. in Department 27 of Spring Street Courthouse.  The Final Status Conference is set for November 21, 2023 at 10:00 a.m. in Department 27 of Spring Street Courthouse.  Plaintiff is ordered to file proof of service of the summons and complaint on Defendant within 30 days of notice of this order. 

Moving party to give notice.  

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar. 

 

Dated this 30th day of March 2023