Judge Lee S. Arian, Case Number: 22STCV15894, Date: 2024-06-18 Tentative Ruling

Judge: Lee S. Arian, Case: 22STCV15894, Date: 2024-06-18 Tentative Ruling

Case Number: 22STCV15894 Hearing Date: June 18, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION TO SET ASIDE DEFAULT

Hearing Date: 6/18/24¿

CASE NO./NAME: 22STCV15894 JOEANNA CLARK vs LEXI BENNETT

Moving Party: Plaintiff Joeanna Clark

Responding Party: Unopposed

Notice: Sufficient¿

Ruling: MOTION TO SET ASIDE DISMISSAL IS GRANTED

“It is … well established that it is the policy of the law to bring about a trial on the merits whenever possible, so that any doubts which may exist should be resolved in favor of the application, to the end of securing to a litigant his day in court and a trial upon the merits.”¿ (Frank E. Beckett Co. v. Bobbitt¿(1960) 180 Cal.App.2d Supp. 921, 928.)

Section 473, subdivision (b) provides for two distinct types of relief—commonly differentiated as “discretionary” and “mandatory”—from certain prior actions or proceedings in the trial court. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124.) “Under the discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,’ the court has discretion to allow relief from a ‘judgment, dismissal, order, or other proceeding taken against’ a party or his or her attorney.¿ Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court shall vacate any ‘resulting default judgment or dismissal entered.’” (Ibid., internal citations and quotation marks omitted, quoting CCP § 473, subd. (b).)

An application for relief under Code of Civil Procedure section 473, subdivision (b) must be made within a reasonable time and in no case exceeding six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought. (CCP § 473, subd. (b).)

The mandatory portion of section 473 requires the court to, “whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, 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).) A timely mea culpa declaration by a plaintiff’s attorney establishing that a dismissal was taken against her client as a result of attorney mistake, inadvertence, or neglect deprives the court of the discretion to deny relief. (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 65.)

Plaintiff seeks to vacate the Court’s order of dismissal issued on November 9, 2023. Plaintiff failed to appear at the court hearing due to a calendaring error by Plaintiff’s counsel. Plaintiff’s counsel mistakenly thought the date for the Final Status Conference was on November 27, 2023, and the Jury Trial was on a different date, December 9, 2023. Consequently, Plaintiff’s counsel failed to appear at the Final Status Conference on October 26, 2023, and the Jury Trial on November 9, 2023. This failure to appear constitutes excusable neglect by Plaintiff’s counsel, which led to the dismissal of Plaintiff’s action without a hearing on the merits.

Mandatory relief is proper here. First, the motion is timely. The motion was filed on April 23, 2024, less than six months from the order of dismissal. Second, the relief is from an order of dismissal, a court order subject to mandatory relief. Third, Plaintiff’s attorney filed a declaration attesting to his mistake. Fourth, no opposition was filed. Thus, the motion to set aside the dismissal is GRANTED.

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PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.