Judge Lynne M. Hobbs, Case Number: 21STCV19795, Date: 2024-01-19 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV19795, Date: 2024-01-19 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.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

Case Number: 21STCV19795 Hearing Date: January 19, 2024 Dept: 30

ASAHLEIGH ROBINSON, AN INDIVIDUAL vs MILES DUPEE, AN INDIVIDUAL

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED. The Court calendars in 45 days an OSC re dismissal for failure timely to enter default pursuant to CRC Rule 3.110(g) and (i), CRC Rule 3.740, CCP 581(b)(4), CCP 583.410, and 583.420(a)(2)(B). Clerk to give notice.

Background

On May 26, 2021, Plaintiff Asahleigh Robinson filed a complaint against Defendant Miles Dupee, alleging a cause of action for motor vehicle and general negligence, arising out a vehicle collision that occurred on June 14, 2019.

On November 23, 2022, this Court dismissed this case without prejudice pursuant to CCP 581(b)(3) when no party appeared for trial.

On May 22, 2023, Plaintiff filed this motion to set aside the dismissal.

Legal Standard

Code of Civil Procedure § 473(b) provides for mandatory and discretionary relief from dismissal. “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 through his or her mistake, inadvertence, surprise, or excusable neglect.” CCP §473(b). Where such an application for discretionary relief is made, the motion shall be accompanied by a copy of the answer or pleading proposed to be filed, or the application will not be granted. (Id.) The court must grant relief from dismissal where the application is accompanied by an attorney affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. (Id.) In either case, the application must be made within a reasonable time, and in no case exceeding six months after the judgment. (Id.)

“The court shall, whenever relief is granted based on attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc. § 473, subd. (b).)

Discussion

The motion is timely filed under C.C.P. § 473(b). The action was dismissed on November 23, 2022. Plaintiff filed the motion to set aside the dismissal on May 22, 2023, within six months after dismissal was entered. Six months is defined as half a year, or 182 days. (Davis v. Thayer (1980) 113 Cal.App.3d 892, 903 (“We therefore conclude that as employed in section 473 of the Code of Civil Procedure six months is the equivalent of half a year and, under section 6803 of the Government Code, is the equivalent of 182 days.”).)

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 23, 2022, 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 his office failed to correctly calendar the final status conference and trial date. (Khalil Decl., ¶ 2.)

As Plaintiff’s counsel has filed a declaration attesting to neglect, inadvertence, or mistake in failing to properly supervise his calendar, the dismissal must be set aside.