Judge Lynne M. Hobbs, Case Number: 21STCV25236, Date: 2024-03-15 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV25236, Date: 2024-03-15 Tentative Ruling

Case Number: 21STCV25236 Hearing Date: March 15, 2024 Dept: 30

BIJAN TORABI, et al. vs RAISA ZILBERMAN

TENTATIVE

Plaintiffs’ Motion to Set Aside the Dismissal is GRANTED.

An Order to Show Cause re Dismissal for Failure to File Serve Summons and Complaint pursuant to CCP sections 128, 177.5, 583.410 & 5834.420(a)(1); CRC rule 2.30, 3.110(b) & 3.110(f) is set on May 14, 2024 at 8:30 a.m. The Court may dismiss the action, and/or impose sanctions against Counsel for Plaintiff, at the time of the Order to Show Cause hearing if counsel or parties fail to appear, or fail to give good cause for the delay in serving the summons and complaint. Matter is also to be calendared for trial in nine months. Final Status Conference is set on December 02, 2024 at 10:00 a.m. and Trial is set on December 16, 2024 at 8:30 a.m.

Plaintiff is ordered to give notice of the Court’s order and file a proof of service of such within 5 days.

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.)

Discussion

Plaintiffs moves for mandatory relief on the ground that dismissal was entered due to the mistake, inadvertence, or neglect of their counsel.

On January 6, 2023, this Court dismissed this case without prejudice pursuant to CCP 581(b)(3) when no party appeared for trial. Counsel for Plaintiffs provides a declaration signed under penalty of perjury, attesting that the failure to appear was due to his office’s mistake in calendaring the date of the matter. (Behjatnia Decl., ¶ 4.) Although no affidavit from the staff member who mistakenly calendared the date has been proffered, the Court finds the attorney's affidavit of fault to be sufficient. The Court finds that Plaintiff has established an excusable ground for relief and grants the motion.

Accordingly, the dismissal entered on January 6, 2023 is set aside.