Judge: Michael C. Kelley, Case: 19AVCV00848, Date: 2022-08-16 Tentative Ruling

Case Number: 19AVCV00848    Hearing Date: August 16, 2022    Dept: A15

Background

This personal injury action arises from an alleged car accident. Plaintiff Hagop Bartoumian filed a complaint on November 13, 2019 against Defendants Terry L C Chin, County of Los Angeles, City of Los Angeles, and State of California. Notably, Plaintiff did not assert any causes of action, nor allege any facts about the car accident, other than that it occurred within this Court’s jurisdiction.

Plaintiff never filed any proofs of service, and none of the defendants have made appearances. There is no indication that Defendants were ever served.

The Court called the Final Status Conference on January 20, 2021, but none of the parties appeared. The Court therefore scheduled an Order to Show Cause Re: Dismissal for Failure to Appear and Failure to Prosecute, and scheduled it for January 29, 2021. Again, none of the parties appeared. (Min. Ord., dated Jan. 29, 2021.) The Court therefore dismissed the case without prejudice. (Ibid.)

Plaintiff filed the instant Motion to Set Aside Dismissal on June 23, 2022. There is no indication that Defendants were served with this motion, though service was not required because Defendants have never appeared. (Code Civ. Proc., § 1010.)

Analysis

Relief from Dismissal—Code of Civil Procedure section 473 provides for both discretionary and mandatory relief from a 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 or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b), italics added.)

“Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any . . . (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).)

Here, Plaintiff’s case was dismissed on January 29, 2021. Plaintiff filed this motion on June 23, 2022. Thus, Plaintiff filed his motion a year and a half after dismissal. Obviously, more than six months have elapsed. Therefore, Plaintiff is not entitled to mandatory relief, despite his attorney’s affidavit attesting to “inadvertence.”

Plaintiff is also not entitled to discretionary relief, since the statutory language makes clear that the motion needed to have been made within six months of the dismissal.

Conclusion