Judge: Latrice A. G. Byrdsong, Case: 22STLC01179, Date: 2024-02-28 Tentative Ruling

Case Number: 22STLC01179    Hearing Date: February 28, 2024    Dept: 25

Hearing Date:                         Wednesday, February 28, 2024

Case Name:                             ERIKA PRADA, an individual v. MICHAEL JASON WEST, an individual; GARDNER TRUCKING, a business form unknown; and DOES 1-10

Case No.:                                22STLC01179

Motion:                                   Motion to Set Aside the Dismissal Entered on 01/17/2024

Moving Party:                         Plaintiff Erika Prada

Responding Party:                   None

Notice:                                    OK

Tentative Ruling:                    Plaintiff Erika Prada’s Motion to Set Aside the Dismissal Entered on 01/17/2024 is GRANTED.

The Court sets an ORDER TO SHOW CAUSE Re:  Dismissal for Failure to File Proof of Service for 04/18/2024 at 9:30 a.m. in Department 25 of the Spring Street Courthouse.

BACKGROUND

On February 22, 2022, Plaintiff Erika Prada (“Plaintiff”) filed this action against Defendants Michael Jason West, Gardner Trucking, and Does 1 through 50, alleging a single cause of action for negligence. The complaint alleged that Plaintiff was involved in a motor vehicle accident on September 27, 2019 at the fault of the defendants.

On January 17, 2024, the Court dismissed the action without prejudice based on Plaintiff’s failure to appear or take any action regarding the OSC re Dismissal Pending Settlement.

On January 30, 2024, Plaintiff filed the instant motion to set aside the dismissal.

MOVING PARTY POSITION

            Plaintiff moves to set aside the default judgment entered against it based on its attorney’s mistake due to a calendaring error. Counsel takes full responsibility for failing to appear on January 17, 2024 on Plaintiff’s behalf.

OPPOSITION

            None filed as of February 23, 2024.

REPLY

            None filed as of February 23, 2024.

ANALYSIS

I.          Motion to Set Aside Default Judgment

A.        Legal Standard

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.”  Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.  An application for relief under this section must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney.   Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.  In addition, an application for relief under this section “shall be accompanied by a copy of the answer or other pleading proposed to be filed herein, otherwise the application shall not be granted.”  Code Civ. Proc., § 473, subd. (b).  Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary.  Id.) When relief from default and default judgment is the attorney’s 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.

B.        Merits

            Under the mandatory provision of Section 473(b), the attorney’s neglect does not need to be excusable.   Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 225.

            Here, based on the declaration of Plaintiff’s counsel, Plaintiff failed to appear at the January 17, 2024 hearing due to a calendaring error by Counsel Michael Akhidenor’s clerk.  See Akhidenor Decl. ¶ 4.  Counsel Akhidenor takes full responsibility for failing to appear on Plaintiff’s behalf and asserts that the defendants would not be prejudiced.  Id. at ¶¶ 5-6.  Thus, Plaintiff argues that mandatory relief is warranted under Code of Civil Procedure § 473(b).  Motion at pp. 3-5.

            Under the circumstances, the Court finds that Plaintiff’s argument have merit.  Courts have found excusable neglect where the attorneys relied on a member of their staff “to perform certain tasks, including calendaring deadlines, and the staff member errs.”   See Renteria v. Juvenile Justice, Dept. of Corrections and Rehabilitation (2006) 135 Cal.App.4th 903, 911; see also Bergloff v. Reynolds (1960) 181 Cal.App.2d 349, 358-359; see also Alderman v. Jacobs (1954) 128 Cal.App.2d 273, 275-276.  Therefore, the Court finds that Plaintiff is entitled to relief under the mandatory provision of Code of Civil Procedure § 473(b).

            Accordingly, because Plaintiff’s counsel has admitted fault for his failure to appear at the January 17, 2024, the Court grants the instant motion pursuant to Code of Civil Procedure § 473(b).

II.        Conclusion

            Based on the foregoing, Plaintiff’s Motion to Set Aside the Dismissal Entered on 01/17/2024 is GRANTED.

The Court sets and ORDER TO SHOW CAUSE Re:  Dismissal for Failure to File Proof of Service for 04/18/2024 at 9:30 a.m. in Department 25 of the Spring Street Courthouse.