Judge: Lynne M. Hobbs, Case: 20STCV440143, Date: 2023-11-06 Tentative Ruling

Case Number: 20STCV440143    Hearing Date: November 6, 2023    Dept: 30

MARIA RODRIGUEZ vs PACIFIC BAY, INC., et al.

Motion to Set Aside / Vacate Dismissal

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED.  Moving party to give notice.

DISCUSSION

The motion is timely filed. The action was dismissed on February 1, 2023. This Motion to Set Aside the Dismissal was filed on March 16, 2023, within six months of the dismissal.

The trial court’s granting or denial of relief under this provision is reviewed for abuse of discretion. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) It is noted that appellate courts are traditionally “favorably disposed toward such action on the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies on their merits.” (Mercantile Collection Bureau v. Pinheiro (1948) 84 Cal.App.2d 606, 608, citing Benjamin v. Dalmo Mfg. Co. (1947) 31 Cal.2d 523.)

Plaintiff moves for relief on the ground that dismissal was entered due to the mistake, or neglect of Plaintiff’s counsel. On February 1, 2023, the entire action was dismissed pursuant to California Rule of Court 3.110(g), when Plaintiff did not appear for Order to Show Cause Re: Dismissal for Failure to Enter Default Pursuant to California Rule of Court 3.110(g)/Failure to Enter Default Judgment Pursuant to California Rule of Court 3.110(h).

Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting that the nonappearance at the OSC hearing was the result of an inadvertent calendaring error. (Azizian Decl., ¶ 12.)

Because Plaintiff’s counsel has sufficiently established mistake, inadvertence or neglect, the dismissal must be set aside.