Judge: Lee W. Tsao, Case: 22NWCV01420, Date: 2024-01-02 Tentative Ruling

Case Number: 22NWCV01420    Hearing Date: January 30, 2024    Dept: C

Manuel Herrera Gonzalez, et al. vs Maria Merced Moreno

Case No.: 22NWCV01420

Hearing Date: January 30, 2024 at 9:30 a.m.  

#2

Tentative Ruling

Plaintiffs’ Motion to Set Aside and Vacate Order of Dismissal under CCP § 473(b) is GRANTED. 

Moving party to give notice.

No opposition filed as of January 26, 2024. 

Background

This matter is related to a motor vehicle collision occurring on November 29, 2020.

On November 23, 2022, Plaintiffs Manuel Herrera Gonzalez, Rosa Elia Barajas Valencia, and Sofia Herrera Barajas filed a Complaint against Defendant Maria Merced Morea.

On July 31, 2023, Plaintiffs’ Counsel failed to appear at a case management conference. An order to show cause re dismissal was scheduled.

On November 23, 2023, the Court entered an order of dismissal. 

On December 5, 2023, Plaintiffs filed a motion to set aside and vacate dismissal.

Legal Standard

“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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted….” (emphasis added.) (CCP §473(b).)

Plaintiffs move to vacate the dismissal under CCP § 473(b) on the grounds that the action was dismissed as a result of their attorney’s mistake and inadvertence.  Plaintiffs’ counsel admits that the execution of the Request for Dismissal was the “result of [his] own mistake and inadvertence.” (Declaration of Ricardo A. Perez, ¶ 4.) Counsel attests he accidentally and mistakenly failed to appear for a hearing on November 22, 2023, so the Court dismissed the above-entitled matter. (Mot., p. 3.)  The motion is unopposed. 

This motion originally came before the Court for a hearing on January 2, 2024.  On that date, the Court determined that Plaintiffs’ counsel had demonstrated mistake and inadvertence under CCP § 473(b), but Plaintiffs had not submitted an amended complaint as required by the statute.  The court continued the hearing to today’s date to give Plaintiffs an opportunity to cure the procedural defect.  Plaintiffs were ordered to re-file and re-serve an Amended Motion to Set Aside Dismissal accompanied by an Amended Complaint. The Amended Moving Papers, Opposition, and Reply papers were to be filed and served per Code in accordance with the new hearing date.  Plaintiffs failed to file an Amended Motion to Set Aside Dismissal and Amended Complaint within the time prescribed by CCP § 1005.  However, Plaintiffs did file an Amended Motion with an accompanying Amended Complaint on January 26, 2024 and Defendant still has not indicated any opposition. 

Accordingly, Plaintiffs’ Motion to Set Aside and Vacate Order of Dismissal is GRANTED.  Plaintiffs’ Amended Complaint must be separately filed and served.