Judge: Lynne M. Hobbs, Case: 21STCV19185, Date: 2023-10-23 Tentative Ruling

Case Number: 21STCV19185    Hearing Date: December 22, 2023    Dept: 30

RIVERS SEARS vs UBER TECHNOLOGIES, INC

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED. The Court calendars in 60 days an OSC re Dismissal for Failure to File Proof of Service pursuant to CCP 583.420(a)(1) and (a)(2)(B). 

Background

On May 21, 2021, Plaintiff Rivers Sears filed a complaint against Defendant Uber Technologies, Inc., alleging a cause of action for motor vehicle negligence, arising out of a vehicle collision that occurred on May 26, 2019.

On November 18, 2022, this Court dismissed this case without prejudice pursuant to CCP 581(b)(3) when no party appeared for trial. The Court also noted there was no proof of service filed.

On May 5, 2023, Plaintiff filed this motion to set aside the dismissal.

On October 23, 2023, this Court continued the motion to allow Plaintiff to file proof of service. On October 30, 2023, Plaintiff served Defendant.

Discussion

The motion is timely filed under C.C.P. § 473(b). The action was dismissed on November 22, 2022. Plaintiff filed the motion to set aside the dismissal on May 5, 2023, within six months after dismissal was entered.

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 mandatory relief on the ground that dismissal was entered due to the mistake, inadvertence, or neglect of her counsel.

On November 22, 2023, this Court dismissed this case without prejudice pursuant to CCP 581(b)(3) when no party appeared for trial. Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting that he failed to appear at trial due to his failure to properly calendar the date. (Krueger Decl.)As Plaintiff’s counsel has filed a declaration attesting to his neglect in failing to calendar the trial date, the dismissal must be set aside. 

Notwithstanding the above, Counsel has been dilatory in prosecuting the case. Service is readily available of  this corporate defendant. Thus, the Court will give Counsel one last opportunity to effectuate service of the summons, complaint, statement of damages, etc.