Judge: Latrice A. G. Byrdsong, Case: 21STLC07674, Date: 2023-11-29 Tentative Ruling

Case Number: 21STLC07674    Hearing Date: November 29, 2023    Dept: 25

Hearing Date:                         Wednesday, November 29, 2023

Case Name:                             GISELA IVETH HERNANDEZ MEJIA, an individual v. JUDITH SWEENEY, an individual; and DOES 1 TO 10, inclusive

Case No.:                                21STLC07674

Motion:                                   Motion to Set Aside/Vacate Dismissal

Moving Party:                         Plaintiff Gisela Iveth Hernandez Mejia

Responding Party:                   None

Notice:                                    OK

Tentative Ruling:           Plaintiff Gisela Iveth Hernandez Mejia’s Motion to Set Aside/Vacate Dismissal is GRANTED.

An Order to Show Cause Re:    Failure to File Proof of Service and Trial Setting Conference is set for January 26, 2024, at 9:30am in Dept. 25 of the Spring Street Courthouse. 

OPPOSITION:          None filed as of November 21, 2023              [   ] Late          [X] None 

REPLY:                     None filed as of November 21, 2023              [   ] Late          [X] None 

BACKGROUND

On October 25, 2021, Plaintiff Gisela Iveth Hernandez Mejia (“Plaintiff”), an individual, filed a personal injury cause of action against Defendants Judith Sweeney (“Defendant”), an individual, and DOES 1 to 10 (“Does”) (collectively referred to as “Defendants”).

The action arises from a motor vehicle collision that occurred on October 23, 2019.

The action was scheduled for a non-jury trial on April 24, 2023.

On April 24, 2023, the Court took note of the parties’ nonappearance for the scheduled non-jury trial and ordered the dismissal of this matter without prejudice due to the nonappearance by the parties.

On October 24, 2023, Plaintiff filed a motion to set aside the dismissal (“Motion”). No opposition was filed.

MOVING PARTY POSITION

Plaintiff requests to set aside the dismissal under section 473(b) arguing that, due to Plaintiff’s counsel’s own mistake, inadvertence, surprise, or neglect in mis-calendaring the April 24, 2023, hearing, Plaintiff’s counsel failed to appear.

OPPOSITION

            No opposition has been filed.

REPLY

            No reply has been filed.

ANALYSIS

I.          Legal Standard

Under Code of Civil Procedure, section 473, subdivision (b), “the court may, upon any terms as may be just, 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.” (Code Civ. Proc., §473(b)). Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) An application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise, or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) When relief from default and a default judgment is based on an attorney affidavit of fault, the six-month period starts to run from the date of the entry of the default judgment. (Code Civ. Proc., § 473, sub. (b); Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 295.)

II.        Discussion

Plaintiff moves to set aside the dismissal under section 473(b) due to Plaintiff’s counsel’s own mistake, inadvertence, surprise, or neglect.

The Court finds that the Motion was timely filed. Here, the order of dismissal was entered on April 24, 2023. (4/24/23 Minute Order.) CCP section 473(b) provides that an application for relief must be made no more than six months after the entry of the order from which relief is sought. In this case a motion for relief needed to have been made no later than October 24, 2023. Here, Plaintiffs filed their motion for relief on October 24, 2023. Thus, the Motion is timely.

Plaintiff’s counsel’s affidavit of fault makes clear that the dismissal was entered against the Plaintiff because of Plaintiff’s counsel’s mistake, inadvertence, surprise, or neglect. Plaintiff’s counsel asserts that due to a clerical error, the non-jury trial was mis-calendared on Plaintiff’s counsel's calendar. (Marselin S. Koshkaryan Boyajyan Declaration ¶ 6.) The mis-calendaring caused Plaintiff’s counsel to unknowingly and unintentionally fail to appear at the April 24, 2023, hearing date. (Id.) Thus, the Court finds that relief under section 473(b) is mandatory.

Therefore, because the request for relief is timely and meets the requirement for mandatory relief under section 473(b), the Court GRANTS the motion to set aside the dismissal.

III.       Conclusion

            Plaintiff’s Motion to Set Aside/ Vacate Dismissal is GRANTED.

            The Court sets an Order to Show Cause Re:    Failure to File Proof of Service and Trial Setting Conference is set for January 26, 2024, at 9:30am in Dept. 25 of the Spring Street Courthouse. 

            Moving party to give notice.