Judge: Lisa R. Jaskol, Case: 22STCV00828, Date: 2024-11-20 Tentative Ruling
Case Number: 22STCV00828 Hearing Date: November 20, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On July 7, 2023, the Court dismissed the action without prejudice under Code of Civil Procedure section 581, subdivision (b)(3). The Court served the order on Plaintiffs’ counsel the same day.
On October 2, 2024, Plaintiffs filed a motion to vacate the dismissal. The motion was set for hearing on November 20, 2024.
No trial date is currently scheduled.
PARTIES’ REQUEST
Plaintiffs ask 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:
“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. . . .”
(Code Civ. Proc., § 473, subd. (b).)
DISCUSSION
Plaintiffs asserts that the Court dismissed the case as the result of Plaintiffs’ counsel’s inadvertence and excusable neglect. However, Plaintiffs filed their motion more than six months after the dismissal. The Court therefore denies the motion. (See Code Civ. Proc., § 473, subd. (b).)
CONCLUSION
The Court DENIES the motion of Plaintiffs Marisela Irepan and Jesus Espinoza, a minor, to vacate the Court’s July 7, 2023 order dismissing their case.
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.