Judge: Lynne M. Hobbs, Case: 22STCV00336, Date: 2024-01-31 Tentative Ruling

Case Number: 22STCV00336    Hearing Date: January 31, 2024    Dept: 30

SEYED A. MAJLESSI vs CITY OF LOS ANGELES, et al.

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED. The Court calendars in 60 days an OSC re dismissal for failure to serve pursuant to CRC Rule 3.110(b) and (f), CCP 583.410, and 583.420(a)(1), as well as the Final Status Conference and Trial in six months. Clerk to give notice.

Background

On January 5, 2022, Plaintiff Seyed A. Majlessi filed a complaint against Defendants City of Los Angeles, and Queensland Manor North Cooperative, alleging causes of action for dangerous condition of public property, negligence, premises liability, private nuisance, and public nuisance, arising out of a trip and fall.

On July 5, 2023, this Court dismissed this case without prejudice pursuant to CCP 581(b)(3) when no party appeared for trial.

On October 31, 2023, Plaintiff filed this motion to set aside the dismissal.

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.)

“The court shall, whenever relief is granted based on attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc. § 473, subd. (b).)

Discussion

The motion is timely filed under C.C.P. § 473(b). The action was dismissed on July 5, 2023. Plaintiff filed the motion to set aside the dismissal on October 31, 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 July 5, 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 did not appear at the final status conference and at trial due to a calendaring error. (Janfaza Decl., ¶ 8.)

As Plaintiff’s counsel has filed a declaration attesting to his neglect, inadvertence, mistake or surprise, the dismissal must be set aside.

The Court notes, however, that Plaintiff has not filed a proof of service in this case and the case is over two years old. The Court sets an OSC re dismissal for delay in failing to serve and prosecute. The Court also sets the final status conference and trial date.