Judge: Lynne M. Hobbs, Case: 21STCV46960, Date: 2024-01-04 Tentative Ruling

Case Number: 21STCV46960    Hearing Date: January 4, 2024    Dept: 30

LINDA KROLL vs LYFT, INC., et al.

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED. The Court calendars in 35 days an OSC re dismissal for failure to file proof of service pursuant to CRC Rule 3.110(b) - (f), CCP 581(b)(4), CCP 583.410 and CCP 583.420(a)(1). Clerk to give notice.

Background

On December 27, 2021, Plaintiff Linda Kroll filed a complaint against Defendants Lyft Inc., and Sam Guen, alleging a cause of action for motor vehicle negligence, arising out of a vehicle collision that occurred on December 28, 2019.

On June 26, 2023, this Court dismissed this case without prejudice pursuant to CCP 581(b)(3) when no party appeared for trial. 

On October 11, 2023, Plaintiff filed this motion to set aside the dismissal. No proof of service of the motion, complaint nor summons has been filed against the defendants. The case is now over two years old with no service.

Discussion

The motion is timely filed under C.C.P. § 473(b). 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 action was dismissed on June 26, 2023. Plaintiff filed the motion to set aside the dismissal on October 11, 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 June 26, 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 he was recovering from a heart attack and missed the trial date. (Wyatt Decl., ¶ 4.) As Plaintiff’s counsel has filed a declaration attesting to his neglect, inadvertence, mistake or surprise, the dismissal must be set aside.