Judge: Lisa R. Jaskol, Case: 23STCV06190, Date: 2025-02-14 Tentative Ruling
Case Number: 23STCV06190 Hearing Date: February 14, 2025 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On September 17, 2024, the Court dismissed the action without prejudice under Code of Civil Procedure section 581, subdivision (b)(3), when Plaintiff’s counsel did not appear at trial.
On December 24, 2024, Plaintiff filed a motion to vacate the dismissal. The motion was set for hearing on February 14, 2025.
No trial date is currently scheduled.
PARTY’S REQUEST
Plaintiff asks the Court to vacate the dismissal of his case.
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. . . .”
(Code Civ. Proc., § 473, subd. (b).)
DISCUSSION
Plaintiff asks the Court to vacate the dismissal of his case based on the mandatory relief provision of Code of Civil Procedure section 473, subdivision (b). According to Plaintiff, his attorney failed to appear for trial on September 17, 2024 based on the mistaken belief that another firm had substituted into the case to represent him. Plaintiff’s counsel has submitted a declaration under Code of Civil Procedure section 473, subdivision (b).
The Court grants the motion and vacates the dismissal.
CONCLUSION
The Court GRANTS Plaintiff Eliazar Avila's motion to vacate the Court’s September 17, 2024 order dismissing his 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.