Judge: Lynne M. Hobbs, Case: 21STCV39145, Date: 2023-11-29 Tentative Ruling

Case Number: 21STCV39145    Hearing Date: November 29, 2023    Dept: 30

FRANCISCO ELIZONDO vs MAGDELENA GONZALEZ, et al.

Motion to Set Aside / Vacate Dismissal

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED. The Court sets, in 35 days, an OSC re dismissal and/or sanctions in the amount of $250 for failure to serve / prosecute and failure to file proof of service pursuant to CCP 583.410 and 583.420(a)(1) and CRC Rule 3.110(f).  Judicial Assistant to calendar jury trial and final status conference in 120 days. Clerk to give notice.

DISCUSSION

The motion is timely filed under C.C.P. § 473(b). The action was dismissed on April 21, 2023. Plaintiff filed the motion to set aside the dismissal on May 15, 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 May 3, 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 his office failed to calendar the FSC and trial date. (Shiri Decl., ¶ 4.)As Plaintiff’s counsel has filed a declaration attesting to his neglect in failing to ensure the trial date and FSC were calendared, the dismissal must be set aside. Court will set a hearing in 30 days so that Counsel may be heard on the issue of dismissal, as no proof of service of the summons and complaint has been served. 

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JA's Proposed Dates:

OSC: 01/05/2024
FSC: 03/28/2024
TRIAL: 04/11/2024