TENTATIVE RULING

Plaintiffs Herbert C. Rubinstein, Trustee of The Herbert C. & Pauline L. Rubinstein Family Trust of 2016; and Colby Development LP’s Motion to Vacate Judgment of Dismissal of Plaintiffs’ Complaint is GRANTED.

Plaintiffs Herbert C. Rubinstein, Trustee of The Herbert C. & Pauline L. Rubinstein Family Trust of 2016; and Colby Development LP to give notice. 

REASONING

Request for Judicial Notice

Plaintiffs Herbert C. Rubinstein, Trustee of The Herbert C. & Pauline L. Rubinstein Family Trust of 2016; and Colby Development LP (“Plaintiffs”) request judicial notice of 12 court records in this action. Plaintiffs’ request is GRANTED pursuant to Evidence Code section 452, subdivision (d).

Analysis

Plaintiffs move the Court for an order vacating the judgment by dismissal of Plaintiffs’ complaint entered February 5, 2024, and an order vacating the November 13, 2023 order for terminating sanctions. Plaintiffs argue that the orders were the result of negligence and abandonment of representation by Plaintiffs’ former attorney, who failed to serve any responses to discovery, failed to oppose the discovery motions, and failed to notify Plaintiffs of any motions and resulting order. Defendant Colby Square Homeowners Association, Inc. (“Defendant”) has not filed an opposition to the motion.

Code of Civil Procedure section 473, subdivision (b), provides that “[t]he 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.” A motion for such relief “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Ibid.) “One who has been prevented by extrinsic factors from presenting his case to the court may bring an independent action in equity to secure relief from the judgment entered against him.” (Olivera v. Grace (1942) 19 Cal.2d 570, 575.)

The Court finds there is a proper basis to vacate the judgment here. Plaintiffs’ motion is timely given it was made on May 9, 2024, less than six months from the entry of both orders. Plaintiff Herbert C. Rubinstein has provided a sworn statement that he provided discovery responses to his attorney, but his attorney did not communicate with him, and he had no knowledge of the motions or failure to provide discovery responses or appear at hearings. (Mot., Rubinstein Decl. ¶¶ 17-27.) This is a satisfactory excuse for not properly prosecuting this action and complying with discovery obligations, and Plaintiffs timely moved to set aside the judgment. Accordingly, Plaintiffs Herbert C. Rubinstein, Trustee of The Herbert C. & Pauline L. Rubinstein Family Trust of 2016; and Colby Development LP’s Motion to Vacate Judgment of Dismissal of Plaintiffs’ Complaint is GRANTED.