Judge: Lee S. Arian, Case: 22STCV09497, Date: 2023-12-04 Tentative Ruling

Case Number: 22STCV09497    Hearing Date: December 4, 2023    Dept: 27

Tentative Ruling

Judge Lee S. Arian, Department 27

HEARING DATE:     December 4, 2023                              TRIAL DATE:  Vacated

CASE:                                Maria Araceli Flores v. Bobby Lee Mays, et al.,

CASE NO.:                 22STCV09497

MOTION TO SET ASIDE DISMISSAL

MOVING PARTY:               Plaintiff Maria Araceli Flores

RESPONDING PARTY:     No opposition

I.          BACKGROUND

            On March 17, 2022, Plaintiff, Maria Araceli Flores, filed a Complaint against Defendants Bobby Lee Mays and Does 1-50 (collectively, “Defendants”) for injuries arising from a March 20, 2022, motor vehicle accident. 

            On September 14, 2023, after Plaintiff failed to appear at the Final Status Conference and at Trial, the Court dismissed the Complaint pursuant to CCP 581(b)(3).  The Clerk of the Court mailed notice of the Court’s order on the same day.

On November 9, 2023, Plaintiff filed this motion to set aside the dismissal under CCP 473(b). 

The motion is unopposed.

II.        LEGAL STANDARD

Code of Civil Procedure section 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.” The moving party must file the motion in a timely manner and provide an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. (Code Civ. Proc., § 473, subd. (b).) A motion is timely when it is sought “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).)

III.      DISCUSSION

Plaintiff satisfied the requirements under section 473(b) to have the dismissal set aside. In Flores v. Board of Supervisors, the court granted the petition for relief when the plaintiffs’ attorneys filed their claim 23 days late because “calendar errors by an attorney, or a member of his staff are, under appropriate circumstances, excusable.” (Flores v. Board of Supervisors (1970) 13 Cal.App.3d 480, 482). Here, Plaintiff’s Counsel submits a sworn affidavit in compliance with section 437(b) because he states that the new paralegal failed to calendar the Final Status Conference and Trial dates which resulted in Plaintiff’s non-appearance. (Gilbert Quiñones Declaration, ¶3). The paralegal’s failure to calendar the dates was likely due to inadvertence because she was new to the job. Additionally, Plaintiff’s Counsel filed this motion two months after the dismissal, which is considered within section 437’s “reasonable time” standard.

IV.       CONCLUSION 

Based on the foregoing, the motion to set aside the September 14, 2023, dismissal is GRANTED, and the action is reinstated. 

The Final Status Conference is set for _________ at 10:00 a.m. in Department 27 of Spring Street Courthouse.  Trial is set for __________ at 8:30 a.m. in Department 27 of Spring Street Courthouse. Plaintiff is ordered to file proof of service of the summons and complaint on Defendants within 30 days of notice of this order.  (Code Civ. Proc., § 583.210.)

Dated:   December 4, 2023                                      ___________________________________

                                                                                    Lee S. Arian

                                                                                    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.