Judge: Lynne M. Hobbs, Case: 20STCV38493, Date: 2023-10-02 Tentative Ruling
PLEASE NOTE:
The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.
Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.
Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.
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Case Number: 20STCV38493 Hearing Date: October 2, 2023 Dept: 30
MARTIN JIMENEZ vs THOMAS ELMER SEILER
Motion to Set Aside / Vacate Dismissal
Ruling: Plaintiff’ Martin Jimenez’s Motion to Set Aside and Vacate Order of Dismissal is GRANTED. Moving party to give notice.
Discussion: The Court entered an Order of Dismissal on October 10, 2022. Based on the date of dismissal, Plaintiff Martin Jimenez (Plaintiff) had until April 10, 2023 to file a motion to set aside the dismissal because it would be within the six (6) month limit set by statute. (Code Civ. Proc., § 473(b).) Plaintiff, by and through her counsel of record filed the motion to set aside dismissal on March 21, 2023, which makes it timely because it was within the six (6) months required by statute.
Furthermore, Plaintiff advances the Declaration of Ricardo Antonio Perez, his counsel of record. Counsel avers that he failed to appear for the hearing on October 10, 2022 due to his mistake, inadvertence, surprise, and neglect. (Perez Decl., at ¶ 4.) Counsel avers that it was solely his blunder for which he is embarrassed and apologetic. (Id.) Counsel does not explain how the failure to appear was due to his mistake, inadvertence, surprise, and neglect. However, under Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, the court held that Code Civ. Proc., § 473(b) does not require an attorney’s sworn affidavit or declaration attesting to his or her mistake, inadvertence, surprise, or neglect include his or her reasons for it. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.)
As such, Counsel demonstrates his failure to appear for the hearing on October 10, 2022 was the result of mistake, inadvertence, surprise, and neglect on his part. Counsel’s conduct and declaration submitted to the Court mandates relief from dismissal. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 618.)
Therefore, the Court finds that an order setting aside the dismissal is warranted under the law because Plaintiff Martin Jimenez’s motion was timely filed and Plaintiff’s counsel has sufficiently established mistake, inadvertence, surprise, and neglect