Judge: Lisa R. Jaskol, Case: 21STCV22020, Date: 2023-11-14 Tentative Ruling

Case Number: 21STCV22020    Hearing Date: November 14, 2023    Dept: 28

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

BACKGROUND 

On June 14, 2021, Plaintiff Waltshun Williams (“Plaintiff”) filed this action against Defendants Maryalise Shaw (“Defendant”) and Does 1-10 for general negligence and premises liability. 

On December 12, 2022, the Court dismissed the action without prejudice under Code of Civil Procedure section 581, subdivision (b)(3). 

On June 13, 2023, Plaintiff filed a motion to vacate dismissal to be heard on November 14, 2023. 

PARTY’S REQUEST 

Plaintiff requests that the Court vacate the dismissal. 

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 seeks an order vacating the dismissal “on the basis of attorney fault” under Code of Civil Procedure section 473, subdivision (b).  (Motion p. 1.)  Plaintiff asserts that “not more than six months have elapsed since entry of the dismissal.”  (Motion p. 2.) 

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 [discussing Davis]; National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 416.) 

The Court dismissed the case on December 12, 2022.  Plaintiff had 182 days – until June 12, 2023 – to file a motion to vacate the dismissal.  Plaintiff filed the motion on June 13, 2023, one day late. 

The Court denies the motion. 

CONCLUSION 

The Court DENIES Plaintiff Waltshun Williams’s motion to vacate the December 12, 2022 order dismissing the case. 

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.