Judge: Latrice A. G. Byrdsong, Case: 20STLC08282, Date: 2023-12-18 Tentative Ruling

*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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Case Number: 20STLC08282    Hearing Date: December 18, 2023    Dept: 25

Hearing Date:                         Monday, December 18, 2023

Case Name:                             ERNEST PHILLIP MARROQUIN, JR, et al. v. TAYLOR ALEXANDRIA WILLIAMS, et al.

Case No.:                                20STLC08282

Motion:                                   Motion to Set Aside/Vacate Dismissal

Moving Party:                         Ernest Phillip Marroquin, Jr

Responding Party:                   None

Notice:                                    None

Tentative  Ruling:                   The motion to set aside/vacate dismissal is DENIED.

BACKGROUND

On September 30, 2020, Plaintiffs Ernest Phillip Marroquin Jr. (“Marroquin”), Pablo Melendez (“Melendez”), and Ramona Jean Guerra (“Guerra”) (collectively, “Plaintiffs”) filed this action against Defendants Taylor Alexandria Williams (“Williams”), Masroor A. Kazi (“Kazi”), and Does 1 through 50 (collectively “Defendants”) for personal injuries, arising from a car accident.

On September 26, 2023, the Court dismissed the case without prejudice after there were no appearances at the Order to Show Cause Re: Failure to File Proof of Service; Order to Show Cause Re: Why Sanctions Should Not be Imposed for Plaintiff's Failure to Comply with California Rule of Court Section 3.110(b); Order to Show Cause Re: Entry of Default and Default Judgment hearing. (Minute Order Dated 9/26/2023.)

On November 17, 2023, Plaintiff Marroquin filed a motion to set aside the dismissal and restore the case to the civil active list but failed to provide proof of service on the named defendants.

As of December 13, 2023, no opposition has been filed.

ANALYSIS

I.                   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.) 

According to Section 663(a) of the California Code of Civil Procedure, "the party bringing this motion should file it with the court clerk and serve notice upon the opposing party, stating the reasons for the motion." 

II.                Discussion

The Moving Party argues that the Court should set aside/vacate the dismissal and restore the case to the Civil Active List on the grounds of mistake, inadvertence, or excusable neglect. (Notice of Motion p.2.)

            Here, Plaintiff Marroquin’s counsel provides his Declaration in support of this motion. (Dec. Quiñones p.1-2.) Marroquin’s counsel submitted this application about two months after the dismissal which is considered timely. (Id. at ¶9.) Further, Plaintiff Marroquin’s counsel states that his calendaring error resulted in his failure to appear at the September 26, 2023 hearing. (Id. at ¶2-7.) The counsel’s paralegal calendared the hearing for October 4, 2023 rather than for September 26, 2023. (Id. ¶4,8.)

            However, Plaintiff failed to provide proof of service on the named defendants. Therefore, the Court finds that Plaintiff’s motion is procedurally defective.  

III.       Conclusion

Plaintiff Marroquin’s Motion to Set Aside Dismissal and Restore Case to Civil Active List is DENIED. 

Moving Party is ordered to give notice.