Judge: Lisa R. Jaskol, Case: 21STCV06935, Date: 2024-10-25 Tentative Ruling
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Case Number: 21STCV06935 Hearing Date: October 25, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On February 22, 2021, Plaintiff Claudia E. Mejia Flores, guardian ad litem of Frankie Mejia Flores (“Plaintiff”), filed this action against Defendants City of Los Angeles (“City”), County of Los Angeles (“County”), and Does 1-50 for negligence/premises liability and dangerous condition of public property.
On February 25, 2021, the Court appointed Claudia E. Mejia Flores to serve as guardian ad litem for Frankie Mejia Flores.
On April 12, 2021, the County filed an answer. On April 23, 2021, the Court dismissed the County without prejudice at Plaintiff’s request.
On May 12, 2021, the Court (1) sustained the City’s demurrer to Plaintiff’s first cause of action for negligence/premises liability without leave to amend, (2) granted the City’s motion to strike all references to Government Code sections 815.2, 815.4, 820, 830, 835.2, 840.2, 840.4 and 945 from the second cause of action for dangerous condition of public property without leave to amend.
On May 21, 2021, the City filed an answer.
On September 1, 2021, the City filed a cross-complaint against Cross-Defendants Maria G. Mendoza (“Mendoza”) and Roes 1-10 for indemnification, apportionment of fault, and declaratory relief. On September 30, 2021, Mendoza filed an answer to the cross-complaint.
On January 18, 2024, Plaintiff filed a notice of settlement.
On August 28, 2024, the Court dismissed Plaintiff’s complaint and the City’s cross-complaint without prejudice.
On September 3, 2024, Plaintiff filed a motion to set aside the dismissal. The motion was set for hearing on October 25, 2024. No opposition has been filed.
PARTY’S REQUEST
Plaintiff asks the Court to set aside the dismissal under Code of Civil Procedure section 473, subdivision (b).
LEGAL STANDARD
Code of Civil Procedure section 473, subdivision (b), provides in part:
“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. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.”
(Code Civ. Proc., § 473, subd. (b).)
DISCUSSION
Plaintiff asserts that the Court dismissed the case as the result of Plaintiff’s counsel’s inadvertence, mistake, and/or excusable neglect. Plaintiff’s counsel has submitted a declaration stating that, due to a calendaring error, counsel failed to appear at the scheduled Order to Show Cause re: Dismissal at which the Court dismissed the case.
The Court grants the motion and vacates the dismissal of the complaint and the cross-complaint.
CONCLUSION
The Court GRANTS Plaintiff Claudia E. Mejia Flores, guardian ad litem of Frankie Mejia Flores’s motion to set aside the dismissal. The Court vacates the dismissal of the complaint and cross-complaint entered on August 28, 2024.
The Court sets an Order to Show Cause re: Dismissal (Settlement) on November 25, 2024, at 8:30 a.m., in Department 28 of the Spring Street Courthouse.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.