Judge: Kerry Bensinger, Case: 21STCV37435, Date: 2023-08-25 Tentative Ruling

Case Number: 21STCV37435    Hearing Date: August 25, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     August 25, 2023                                 TRIAL DATE:  Vacated

CASE:                                John Alver Mendoza Tolentino, et al. v. Binghui Zhao, et al.

CASE NO.:                 21STCV37435

MOTION TO SET ASIDE DISMISSAL

MOVING PARTY:               Plaintiffs John Alver Mendoza Tolentino, Safia Tolentino, a minor, by and through her Guardian ad Litem, John Alver Mendoza Tolentino; Savannah Tolentino, a minor, by and through her Guardian ad Litem, John Alver Mendoza Tolentino

RESPONDING PARTY:     No opposition

I.          BACKGROUND

            On October 12, 2021, Plaintiffs, John Alver Mendoza Tolentino, Safia Tolentino, a minor, by and through her Guardian ad Litem, John Alver Mendoza Tolentino; Savannah Tolentino, a minor, by and through her Guardian ad Litem, John Alver Mendoza Tolentino, filed a Complaint against Defendant, Binghui Zhao,[1] for injuries arising from a motor vehicle accident.

            On April 11, 2023, after Plaintiffs failed to appear at the Final Status Conference and at trial, the Court dismissed the Complaint without prejudice for lack of prosecution.  The Clerk of the Court mailed noticed of the Court’s order on the same day.

On May 30, 2023, Plaintiffs filed this motion to set aside the dismissal under Code of Civil Procedure section 473, subdivision (b). 

The motion is unopposed.

II.        LEGAL STANDARD

Code of Civil Procedure section 473, subdivision (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.”  (Code Civ. Proc., § 473, subd. (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.”  (Code Civ. Proc., § 473, subd. (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 Cal.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”].)   

III.      DISCUSSION

Plaintiffs’ counsel provides his declaration attesting to the fact that the dismissal was taken due to Counsel’s excusable neglect and mistake.  Counsel states he did not receive notice that dates for the Final Status Conference, Trial, or OS re Dismissal had been sent.  Moreover, Counsel admits to having failed to review the Court’s website to check on the status of the case.  In the time between the filing of the Complaint and the Court’s dismissal of the action on April 11, 2023, Plaintiffs’ counsel was engaged in active settlement negotiations with Defendant’s insurance carrier.  Upon learning the action had been dismissed on April 11, 2023, Plaintiffs’ counsel filed this motion just over a month later.  (See Declaration of Mark W. Eisenberg.)  For these reasons, Plaintiffs seek an order setting aside dismissal and reinstating the action.

The Court finds Plaintiffs are entitled to an order vacating the dismissal of their case.  Plaintiffs’ counsel has submitted a declaration showing the dismissal was taken due to his excusable neglect and mistake.  Further, Plaintiffs sought relief well within the statutory time period of six months.  As this motion is unopposed, the Court finds no prejudice will result from setting aside the dismissal and reinstating the action.

IV.       CONCLUSION 

Based on the foregoing, the motion to set aside the April 11, 2023 dismissal is GRANTED and the action is reinstated.  The Final Status Conference is set for March 28, 2024 at 10:00 a.m. in Department 27 of Spring Street Courthouse.  Trial is set for April 11, 2024 at 8:30 a.m. in Department 27 of Spring Street Courthouse.   The OSC re Dismissal is set for June 11, 2024.  Plaintiffs are ordered to file proof of service of the summons and complaint on Defendant within 30 days of notice of this order.  (Code Civ. Proc., §583.210.)

Dated:   August 25, 2023                                          ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            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 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.