Judge: Lynne M. Hobbs, Case: 21STCV19958, Date: 2024-02-23 Tentative Ruling

Case Number: 21STCV19958    Hearing Date: February 23, 2024    Dept: 30

JOHN SCOTT VALLES vs TYLER MALIKE GILLETT, et al.

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal under CCP section 473(b) is DENIED.

Legal Standard

Code of Civil Procedure § 473(b) provides: “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.)

Discussion

Plaintiff seeks a court order vacating the dismissal pursuant to Code Civ. Proc. section 473 subd. (b). Plaintiff argues that counsel for Plaintiff’s assistant mistakenly marked Plaintiff’s File as a settled/closed case in the computer portal which resulted in a failure to serve Defendant. Due to the fact that counsel’s assistant mistakenly marked the file as a closed case, Plaintiff did not serve Defendant. Furthermore, most of the staff at Plaintiff’s counsel had either quit or relocated to another city and state due to the aftermath of the pandemic. Plaintiff’s counsel began to go through files to confirm whether cases actually settled/closed and came across this case.

The motion is not timely filed under C.C.P. § 473. The action was dismissed on May 31, 2023. This Motion to Set Aside the Dismissal was filed on December 1, 2023, more than six months after the complaint was dismissed. 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.”).) Here, the case was dismissed 184 days before Plaintiff filed this motion.

Plaintiff argues he had six months and five days for mailing within California to file his motion for relief. However, Plaintiff did not have to mail this motion to the court. Plaintiff simply had to file it within 182 days of the dismissal, which he failed to do. In any event, the six-month limit is jurisdictional and no exceptions apply. The Court does not have authority under C.C.P. § 473(b) to excuse Plaintiff’s noncompliance with the six-month time limit. (See Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 345 (“if the Legislature had intended to allow an exception to the six-month limit, it would have expressed that intention in the statute, and the six-month limit must be strictly enforced.”).)