Judge: Lisa R. Jaskol, Case: 23STCV18273, Date: 2025-05-08 Tentative Ruling
Case Number: 23STCV18273 Hearing Date: May 8, 2025 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On January 29, 2025, the Court dismissed the case without prejudice when Plaintiff failed to appear for trial.
On February 28, 2025, Plaintiff filed a motion to vacate the dismissal. The motion was set for hearing on May 8, 2025.
PARTY’S REQUEST
Plaintiff asks the Court to vacate the dismissal of the case.
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
Plaintiff asks the Court to vacate the dismissal of the case based on the discretionary and mandatory relief provisions of Code of Civil Procedure section 473, subdivision (b). Plaintiff asserts that her counsel failed to calendar the final status conference and trial, leading the Court to dismiss the case. Plaintiff also cites errors concerning an association of counsel. Plaintiff’s counsel has submitted a declaration accepting responsibility for the errors.
Plaintiff has satisfied the requirements for mandatory relief under Code of Civil Procedure section 473, subdivision (b). The Court grants the motion.
CONCLUSION
The Court GRANTS Plaintiff Habybatou Barry’s motion to vacate the dismissal. The Court vacates the dismissal.
The Court sets a OSC Re: Proof of Service of Summons for June 26, 2025 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.