Judge: Lisa R. Jaskol, Case: 22STCV14905, Date: 2024-05-22 Tentative Ruling

Case Number: 22STCV14905    Hearing Date: May 22, 2024    Dept: 28

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

BACKGROUND 

On May 4, 2022, Plaintiffs Martha Silva Anguiano and Eduardo Silva, a minor by and through his guardian ad litem Jesus Silva, filed this action against Defendants Alexandra Vanessa Peres (“Defendant”) and Does 1-25 for motor vehicle tort and general negligence. 

On July 12, 2022, the Court appointed Jesus Silva to serve as Plaintiff Eduardo Silva’s guardian ad litem. 

On November 1, 2023, the Court dismissed the action without prejudice under Code of Civil Procedure section 581, subdivision (b)(3). 

On March 1, 2024, Plaintiffs filed a motion to vacate the dismissal to be heard on May 22, 2024. 

PARTIES’ REQUEST 

Plaintiffs ask the Court to vacate the dismissal. 

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).) 

DISCUSSION 

Plaintiffs ask the Court to vacate the dismissal under the mandatory and discretionary provisions of Code of Civil Procedure section 473, subdivision (b).  Plaintiffs contend that their failure to appear at the November 1, 2023 trial was the result of their counsel’s “reasonable excusable mistake, inadvertence, surprise or excusable neglect.”  Specifically, Plaintiffs assert that a paralegal in their counsel’s office did not properly calendar the hearing date. 

The Court finds that the dismissal was the result of mistake, inadvertence, surprise, or excusable neglect.  The Court grants the motion. 

CONCLUSION 

The Court GRANTS the motion to vacate dismissal filed by Plaintiffs Martha Silva Anguiano and Eduardo Silva, a minor by and through his guardian ad litem Jesus Silva.  The Court vacates the November 1, 2023 dismissal. 

The Court sets an OSC Re: Failure to File Proof of Service of Summons and Complaint on June 21, 2024, at 8:30 a.m., in Department 28 of the Spring Street Courthouse. 

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.