Judge: Lisa R. Jaskol, Case: 21STCV16285, Date: 2024-02-14 Tentative Ruling

Case Number: 21STCV16285    Hearing Date: February 14, 2024    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On April 29, 2021, Plaintiffs Pascual Velasquez and Ramon Velasquez filed this action against Defendants Jerron D. Tatum and Does 1-100 for negligence (automobile). 

On May 5, 2023, the Court dismissed the action without prejudice under Code of Civil Procedure sections 581, subdivision (g), 583.401, 583.420, subdivision (a)(1), and California Rules of Court, rule 3.110(f). 

On November 6, 2023, Plaintiffs filed a motion to vacate the dismissal to be heard on February 14, 2024. 

No trial date is currently scheduled. 

PARTIES’ REQUEST 

Plaintiffs ask the Court to vacate the dismissal. 

LEGAL STANDARD 

          Code of Civil Procedure section 473, subdivision (b), provides in part: 

“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, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . 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), emphasis added.) 

DISCUSSION 

Citing attorney fault, Plaintiffs seek an order vacating the May 5, 2023 dismissal under the mandatory relief provision of Code of Civil Procedure section 473, subdivision (b).  In the alternative, Plaintiffs ask the Court to vacate the dismissal under the statute’s discretionary relief provision.  Plaintiffs assert that they filed the motion within six months of the May 5, 2023 dismissal. 

For purposes of Code of Civil Procedure section 473, “six months” means 182 days.  (See Davis v. Thayer (1980) 113 Cal.App.3d 892, 903 (Davis) [“We therefore conclude that as employed in section 473 of the Code of Civil Procedure six months is the equivalent of half a year and, under section 6803 of the Government Code, is the equivalent of 182 days”]; see Gonzales v. County of Los Angeles (1988) 199 Cal.App.3d 601, 604-605; National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 416.) 

The Court dismissed the case on May 5, 2023.  Plaintiff had 182 days – until November 3, 2023, a Friday – to file a motion to vacate the dismissal.  Plaintiffs filed the motion the following Monday, on November 6, 2023. 

The Court denies the motion. 

CONCLUSION 

The Court DENIES the motion to vacate the May 5, 2023 dismissal filed by Plaintiffs Pascual Velasquez and Ramon Velasquez. 

Moving parties are ordered to give notice of this ruling. 

Moving parties are ordered to file the proof of service of this ruling with the Court within five days.