Judge Lee W. Tsao, Case Number: 23NWCV01774, Date: 2024-11-06 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV01774, Date: 2024-11-06 Tentative Ruling

Case Number: 23NWCV01774 Hearing Date: November 6, 2024 Dept: C

Michael Anthony Sguigna, et al. v. Cody Ballard, et al.

CASE NO.: 23NWCV01774

HEARING: 11/06/24

TENTATIVE ORDER

Plaintiffs Michael Anthony Sguigna, Maryann Sguigna and Joseph Sguigna’s unopposed Motion to Set Aside/Vacate Dismissal is GRANTED.

Moving party to give notice.

No Opposition filed as of October 23, 2024.

Plaintiffs’ counsel moves for an order to vacate the dismissal entered on May 9, 2024 pursuant to Code of Civil Procedure section 473(b). Plaintiffs’ counsel contends that the failure to appear at the May 9, 2024 hearing was due to Plaintiffs’ counsel making an inadvertent calendaring error as to the hearing date. This error by Plaintiffs’ former counsel Victor Ujkic (“Counsel”) resulted from Counsel taking a medical leave of absence without proper coverage measures in place for upcoming hearings. As a result, Plaintiffs failed to appear at the hearing causing entry of dismissal.

No opposition has been received.

Legal Standard

Judges must vacate dismissals, default entries, and default judgments “whenever (1) an application is made no more than six months after entry of judgment, (2) the application is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, and (3) the attorney's mistake, inadvertence, surprise or neglect in fact caused the dismissal or entry of default.”¿ (Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 927, Wagner v. Wagner (2008) 162 Cal.App.4th 249, 258.)

Discussion

The motion was timely filed on August 9, 2024, within the six-month statutory period.

Plaintiffs’ counsel Constantinos Pavlakos has established by his declaration that the May 9, 2024 dismissal was entered due to excusable neglect by Plaintiffs’ former counsel Victor Ujkic in failing to properly calendar. Mr. Pavlakos noted that this calendaring error occurred because Mr. Ujkic took a medical leave of absence without proper coverage measures in place for upcoming hearings causing Plaintiffs’ failure to appear at the hearing and the entry of dismissal. (Pavlakos Decl. ¶¶ 4–5.) Therefore, pursuant to the mandatory provision of the Code of Civil Procedure section 473, subdivision (b), the court find that Plaintiffs Michael Anthony Sguigna, Maryann Sguigna and Joseph Sguigna have established a right to relief. As no opposition was received, the court will grant the motion on this basis.

Conclusion

Accordingly, the court GRANTS Plaintiffs’ Motion to Set Aside/Vacate Dismissal.