Judge: Lynne M. Hobbs, Case: 22STCV00399, Date: 2024-01-09 Tentative Ruling

Case Number: 22STCV00399    Hearing Date: January 9, 2024    Dept: 30

KEMPER INSURANCE COMPANY vs ERICA MARLO, et al.

TENTATIVE 

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED.  The Court calendars in 45 days an OSC re dismissal or monetary sanctions not to exceed $500 for failure file proof of service pursuant to CRC Rule 3.110(b), (f), and (i). Clerk to give notice.

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 19, 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 Plaintiff’s counsel’s office failed to calendar the final status conference and trial date. (Barreno Decl., ¶ 4.) Plaintiff’s counsel’s attests to her neglect in not closely supervising her calendar to ensure that important dates are recorded and acted upon. (Id., ¶ 7.)As Plaintiff’s counsel has filed a declaration attesting to her neglect, inadvertence, mistake or surprise, the dismissal must be set aside.
______________

OSC: 02/27/2024