Judge: Lisa R. Jaskol, Case: 21STCV29394, Date: 2024-07-11 Tentative Ruling

Case Number: 21STCV29394    Hearing Date: July 11, 2024    Dept: 28

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

BACKGROUND 

On August 10, 2021, Plaintiff Sandra Conklin (“Plaintiff”) filed this action against Defendants Sun Ja Kang (“Defendant”) and Does 1-25 for motor vehicle tort and general negligence. 

On December 21, 2023, the Court dismissed the action without prejudice. 

On June 20, 2024, Plaintiff filed a motion to set aside dismissal to be heard on July 11, 2024. 

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 her attorney’s assistant failed to calendar the December 21, 2023 order to show cause hearing.  As a result, counsel did not appear at the hearing and the Court dismissed the case. 

Plaintiff has provided an attorney declaration attesting to the attorney’s mistake, inadvertence, and excusable neglect.  The Court grants the motion. 

CONCLUSION 

The Court GRANTS Plaintiff Sandra Conklin’s motion to vacate the December 21, 2023 order dismissing the case. 

The Court sets a OSC re: Dismissal for Failure to File Proof of Service on August 9, 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.