Judge: Lisa R. Jaskol, Case: 22STCV04746, Date: 2024-06-24 Tentative Ruling

Case Number: 22STCV04746    Hearing Date: June 24, 2024    Dept: 28

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

BACKGROUND 

On February 7, 2022, Plaintiff Larry Williams Jr. (“Plaintiff”) filed this action against Defendants Kristi Smith (“Defendant”) and Does 1-50 for motor vehicle tort and general negligence. 

On August 7, 2023, the Court dismissed the action without prejudice. 

On February 16, 2024, Plaintiff filed a motion to set aside the dismissal to be heard on May 13, 2024. The Court continued the hearing to June 24, 2024. 

No trial date is currently scheduled. 

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: 

“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).) 

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 [“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.) 

DISCUSSION 

The Court dismissed the case on August 7, 2023.  Plaintiff had 182 days – until February 5, 2024, a Monday – to file a motion to vacate the dismissal.  Plaintiff filed the motion on February 16, 2024. 

The Court denies the motion. 

CONCLUSION 

The Court DENIES Plaintiff Larry Williams Jr.’s motion to set aside the August 7, 2023 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.