Judge: Lynette Gridiron Winston, Case: 22PSCV00934, Date: 2024-09-11 Tentative Ruling

Case Number: 22PSCV00934    Hearing Date: September 11, 2024    Dept: 6

CASE NAME:  Dagoberto Reyes, et al. v. Miguel Banderas 

Plaintiff Dagoberto Reyes’ Motion to Set Aside dismissal to All Parties Except Plaintiff Luz Maria Reyes 

TENTATIVE RULING 

The Court GRANTS the motion to set aside dismissal to all parties except Plaintiff Luz Maria Reyes. 

            Plaintiff Dagoberto Reyes is ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND 

This is a real property dispute. On August 29, 2022, plaintiffs Dagoberto Reyes (Dagoberto) and Luz Maria Reyes (Luz) (collectively, Plaintiffs) filed this action against defendant Miguel Banderas (Defendant) and Does 1 to 10, inclusive, alleging causes of action for partition and compensatory adjustment. 

On February 14, 2022, Plaintiffs dismissed the entire action without prejudice. On August 9, 2024, Dagoberto moved to set aside the dismissal. The motion is unopposed. 

LEGAL STANDARD 

Under Code of Civil Procedure, section 473, subdivision (b), “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.” (Code Civ. Proc., § 473, subd. (b).) Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) An application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise, or neglect. (Id.; English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) 

DISCUSSION 

Dagoberto seeks to set aside the dismissal entered on February 14, 2024, on the grounds that it was the result of mistake, inadvertence, surprise, or excusable neglect. More specifically, Plaintiffs contend their attorney inadvertently filed a dismissal as to all parties when it should have only applied to Plaintiff Luz. Plaintiffs indicate that they filed a stipulated judgment at the same time as they filed the request for dismissal, but the Court dismissed the entire matter without prejudice and then could not file the stipulation. Plaintiffs also note that the stipulation did not contain a signature or judgment page for the judge to sign. 

The Court finds Dagoberto is entitled to the relief sought. The motion was brought within six months of entry of the dismissal. (Code Civ. Proc., § 473, subd. (b).) Plaintiffs’ counsel also provided the necessary declaration attesting to his fault. (See Hernandez Decl., p. 1.) The Court further construes Defendant’s lack of opposition as a tacit admission that the motion is meritorious. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10; see also Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [“Contentions are waived when a party fails to support them with reasoned argument and citations to authority. [Citation.]”]) 

Based on the foregoing, the Court GRANTS the motion. 

CONCLUSION 

The Court GRANTS the motion to set aside dismissal to all parties except Plaintiff Luz Maria Reyes. 

            Plaintiff Dagoberto Reyes is ordered to give notice of the Court’s ruling within five calendar days of this order.