Judge: Lynne M. Hobbs, Case: 22STCV06795, Date: 2023-10-31 Tentative Ruling

Case Number: 22STCV06795    Hearing Date: October 31, 2023    Dept: 30

SOURENA RASHIDI vs MICHELLE R. O'BRIEN

Motion  to Set Aside / Vacate the Dismissal

TENTATIVE

Motion to Set Aside/Vacate Dismissal is GRANTED. Judicial Assistant is to calendar within 60 days an OSC re Sanctions of $60 for Failure to File Proof of Service pursuant to CRC Rule 3.110(f). Moving party is ordered to give notice to Defendant Michelle R. O'Brien

DISCUSSION

Plaintiff moves to set aside the dismissal entered by this Court on August 24, 2023.  Plaintiff asserts that the failure to appear was due to a calendaring mistake. This mistake was not discovered until counsel received the notice of dismissal from the court. (Dec. Behjatnia ¶ 4.)

The Court finds that Plaintiff’s Counsel has established good cause to set aside the dismissal of the complaint. Here, it was a calendaring mistake that caused Plaintiff’s counsel to not appear. 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. Lastly, placing the matter back on calendar will not prejudice Defendant, but failure to do so will prejudice Plaintiff.