Judge Lynne M. Hobbs, Case Number: 21STCV42788, Date: 2023-10-27 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV42788, Date: 2023-10-27 Tentative Ruling

Case Number: 21STCV42788 Hearing Date: October 27, 2023 Dept: 30

GORDANA KIRK, et al. vs MICHAEL JOSEPH COE

Motion to Set Aside / Vacate Dismissal

TENTATIVE

Motion to Set Aside/Vacate Dismissal is GRANTED. Judicial Assistant is to calendar in 60 days an OSC re sanctions in the amount of $60 for failure to file Proof of Service pursuant to CRC Rule 3.110(b) and (f). Moving party is to give notice of this order.

DISCUSSION

Plaintiff moves to set aside the dismissal entered by this Court on May 19, 2023.

Plaintiff argues that the dismissal must be set aside as the failure to appear at the jury trial in May 2023 was due to a clerical error. The trial dates were accidentally removed from counsel’s calendar. Counsel is handling this case and another case involving Gordana Kirk. Additionally, relief from dismissal under CCP § 473(b) based on attorney’s mistake, inadvertence, surprise, or neglect is proper. Specifically, Plaintiff states that it was counsel’s error, a failure to properly calendar the Trial, that resulted in dismissal. Plaintiff’s counsel discovered the dismissal and reserved the first available hearing date. (Motion 6: 17-20.)

The Court finds that Plaintiff’s Counsel has established good cause to set aside the dismissal of the complaint. “Indeed, inexcusable neglect is precisely the kind of attorney neglect contemplated by the provision for mandatory relief under section 473, subdivision (b).” (Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 492–493 [211 Cal.Rptr.3d 137, 149.) Here, it was inadvertence that caused Plaintiff’s counsel to not attend the trial on May 19, 2023. As stated in Martin Potts & Associates, “The purpose of section 473, subdivision (b) generally is “to promote the determination of actions on their merits.” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 439.) Plaintiff’s counsel’s failure to properly calendar the trial date is a mistake on part of counsel. Further, the mandatory relief provision has three purposes: “(1) “to relieve the innocent client of the consequences of the attorney's fault”; (2) “to place the burden on counsel”; and (3) “to discourage additional litigation in the form of malpractice actions by the defaulted client against the errant attorney.” (Id.) Thus, it was not the client’s mistake, but rather counsel’s mistake.