Judge: Lisa R. Jaskol, Case: 21STCV39438, Date: 2023-09-28 Tentative Ruling

Case Number: 21STCV39438    Hearing Date: September 28, 2023    Dept: 28

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

BACKGROUND 

On October 26, 2021, Plaintiff Lukas O’Connor (“Plaintiff”) filed this action against Defendants Madeleine Klineman, Julia Hanna, and Does 1-100 for motor vehicle tort. 

On April 25, 2023, the Court dismissed the action without prejudice when no parties or counsel appeared for trial. 

On May 5, 2023, Plaintiff filed a motion to set aside the dismissal to be heard on August 16, 2023. The Court continued the hearing on the motion to September 28, 2023. 

No trial date is currently set. 

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 filed this motion within 6 months after the Court dismissed the complaint.  In support of the motion, Plaintiff’s counsel submitted a declaration stating that, due to counsel’s error, inadvertence and mistake, the April 25, 2023 hearing date was not calendared correctly on counsel’s calendar.  As a result, Plaintiff’s counsel did not appear in court on April 25, 2023 and the Court dismissed the case without prejudice. 

Plaintiff has established that the dismissal resulted from counsel’s mistake, inadvertence, surprise, or neglect.  The Court grants the motion. 

CONCLUSION 

The Court GRANTS Plaintiff Lukas O’Connor’s motion to vacate the entry of dismissal.  The Court vacates the dismissal. 

The Court sets an OSC: re: Trial Setting Conference for October 27, 2023, 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.