TENTATIVE RULING

Plaintiff Precision Products, Inc.’s Motion for Relief to Set Aside Dismissal is GRANTED.

Plaintiff Precision Products, Inc. to give notice. 

REASONING

Plaintiff Precision Products, Inc. (“Plaintiff”) moves the Court for an order setting aside the dismissal of this action entered by the Court on October 24, 2023, on the ground that the dismissal was the result of Plaintiff’s counsel’s mistake and neglect. The motion is unopposed.

The Court has broad discretion to vacate the entry of default, default judgment, or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure, and within the set time limits. Code of Civil Procedure section 473, subdivision (b), provides, in relevant part:

[T]he 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 . . . dismissal entered against his or her client, unless the court finds that the . . . dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.

“By its language, the statute only requires the affidavit be executed by an attorney who represents the client and whose mistake, inadvertence, surprise or neglect in fact caused the client’s default or dismissal.” (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 517.) Pursuant to Code of Civil Procedure section 473, subdivision (b), a motion to set aside must be brought within six months of the dismissal. However, there is no longer a diligence requirement when mandatory relief is sought pursuant to an attorney affidavit of fault, meaning that if the motion is filed within the six-month period, there is no “reasonable time” inquiry.  (Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 868.)

Plaintiff filed a Notice of Settlement on May 10, 2023, indicating that the parties agreed to a conditional settlement and would file a dismissal by September 2024, which resulted in all scheduled hearings to be vacated and setting an Order to Show Cause Hearing Re: Dismissal (Settlement) hearing for October 24, 2023. No appearances were made for either party on that date when the matter was called for hearing, so the Court dismissed the action with prejudice. Plaintiff’s counsel represents that he failed to properly calendar the hearing date due to miscommunication, and this mistake had not occurred, Plaintiff’s counsel would have appeared on that date and requested that the case not be dismissed before the satisfactory completion of the terms of the parties’ settlement agreement. (Mot., Brutzkus Decl. ¶¶ 9-11.)

The Court finds that Plaintiff is entitled to mandatory relief in this matter. The motion was brought within six months of the dismissal, as the subject dismissal occurred on October 24, 2023, and Plaintiff filed the subject motion to vacate and set aside the dismissal on November 1, 2023. Moreover, Plaintiff has provided a declaration from counsel, Mark D. Brutzkus, stating therein that that the dismissal occurred because of counsel’s mistake. Therefore, the Court finds that relief is warranted here.

Accordingly, Plaintiff Precision Products, Inc.’s Motion for Relief to Set Aside Dismissal is GRANTED.