Judge: Lynne M. Hobbs, Case: 22STCV19526, Date: 2024-04-16 Tentative Ruling

Case Number: 22STCV19526    Hearing Date: April 16, 2024    Dept: 30

MARISA LOPEZ vs WEILIANG ZHAN

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED.

The Court calendars in 60 days the following OSC:  OSC re sanctions in the amount of $250 for failure to file proof of service of summons and complaint within two years pursuant to CRC Rules 3.110(b) and (f), CCP 583.410, and CCP 583.420(a)(1). 

All responsive paperwork is ordered filed at least five days prior to the next court date. CRC rule 3.110(i).

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

Here, the motion is timely filed. The action was dismissed on December 12, 2023. This Motion to Set Aside the Dismissal was filed on March 12, 2024, within six months of the dismissal.

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 relief on the ground that dismissal was entered due to the mistake, inadvertence, or neglect of Plaintiff’s counsel. On December 12, 2023, the entire action was dismissed without prejudice, pursuant to Code of Civil Procedure Section 581(b)(3), when Plaintiff did not appear for Non-Jury Trial. Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting that his office failed to calendar the Final Status Conference and trial dates. (Elmassian Decl., ¶ 5.)

The Court finds that Plaintiff’s counsel has sufficiently established mistake, inadvertence or neglect in supervising the work of his staff, and the dismissal must be set aside. (See Hu v. Fang (2002) 104 Cal.App.4th 61, 64-65 (“‘[E]ven though an attorney cannot be held responsible for every detail of office procedure, he must accept responsibility to supervise the work of his staff.’ [Citations] Thus, Valdez was responsible for supervising Lui’s work and is responsible for Lui's work product, including his mistake. [Citations] [¶] Valdez, as

required, acknowledged that Liu’s error was attributable to the attorney and requested relief from default. The trial court should have granted the Motion.”).)

Conclusion

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED.