Judge Lee S. Arian, Case Number: 22STCV19369, Date: 2024-10-03 Tentative Ruling

Judge: Lee S. Arian, Case: 22STCV19369, Date: 2024-10-03 Tentative Ruling

Case Number: 22STCV19369 Hearing Date: October 3, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION TO SET ASIDE DISMISSAL

Hearing Date: 10/3/24

CASE NO./NAME: 22STCV19369 MANUEL LOPEZ, et al. vs SUSANA CASARRUBIAS HERRERA

Moving Party: Plaintiffs

Responding Party: Unopposed

Notice: Sufficient

Ruling: MOTION TO SET ASIDE DISMISSAL IS GRANTED

Section 473, subdivision (b) states in pertinent part: “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.... Notwithstanding any other requirements of this section, the court shall, 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.” (Italics added.)

Section 473, subdivision (b), provides for two distinct types of relief. “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.” The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect. But the range of adverse litigation results from which relief can be granted is narrower. Mandatory relief only extends to vacating a default which will result in the entry of a default judgment, a default judgment, or an entered dismissal.” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 615–616.) ¿¿

To gain the statutory benefits, a party or legal representative must seek such relief “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); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 (Rappleyea).

Here, the case was dismissed on December 12, 2023, and the present motion to set aside was filed on June 12, 2024, within the six-month deadline. Further, Plaintiffs’ prior attorney submitted a declaration detailing his mistake or neglect, which resulted in the law firm not attending trial on December 12, 2023. Counsel’s mistake led to the dismissal as the minute order indicate that the case was dismissed under Code of Civil Procedure § 581(b)(3) for failing to appear at trial. Finally, dismissal is a type of court order that falls within the scope of mandatory relief under CCP § 473(b). All requirements for mandatory relief have been met and therefore Plaintiffs’ motion is granted.

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.