Judge: Lynne M. Hobbs, Case: 22STCV02646, Date: 2024-04-12 Tentative Ruling

Case Number: 22STCV02646    Hearing Date: April 12, 2024    Dept: 30

ELPIDIO RIOS vs CP V CUMULUS, LLC, A LIMITED LIABILITY COMPANY, et al.

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is DENIED. Clerk to give notice.

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.)

Discussion

Plaintiff moves for relief from the dismissal under Code of Civil Procedure section 473(b)’s mandatory and discretionary prongs, arguing his counsel inadvertently failed to calendar the Final Status Conference and trial dates.

Here, the motion is not timely filed. The action was dismissed on July 21, 2023. This Motion to Set Aside the Dismissal was filed on January 22, 2024, six calendar months and 1 day, or 185 days after dismissal. In Jimenez v. Chavez (2023) 97 Cal.App.5th 50, the Court held that six months is measured by the longer of 182 days or six calendar months. Here, in both cases, it is too late.

Plaintiff argues that January 21, 2024 fell on a Sunday, and thus, Plaintiff is entitled to file this motion on Monday, January 22, 2024 per Code of Civil Procedure Section 13. The Court disagrees. Plaintiff’s recourse was to file the motion on Friday, January 19, 2024 at the latest, before the time limit expired, and should not have waited until the very last minute (which exceeded 6 months and 182 days), in the hopes that it would not be too late under Code of Civil Procedure Section 13. As expressly provided by the statute, Section 473(b) mandates that a motion for relief be brought “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” Jurisdictional statutes must be strictly construed according to their express language to ensure that parties and courts are not required to speculate about jurisdictional time limits. Van Beurden Ins. Servs. v. Customized Worldwide Weather Ins. Agency (1997) 15 Cal.4th 51, 63. This six-month time limitation is jurisdictional; the court has no power to grant relief under section 473 once the time has lapsed. [Citations.]” (Austin v. Los Angeles Unified School Dist.¿(2016) 244 Cal.App.4th 918, 928.) The Court does not have authority under CCP section 473(b) to excuse Plaintiff’s noncompliance with the six-month time limit. (See Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 345 (“if the Legislature had intended to allow an exception to the six-month limit, it would have expressed that intention in the statute, and the six-month limit must be strictly enforced.”).) 

Plaintiff’s Untimely Motion to Set Aside the Dismissal is DENIED.