Judge: Michael E. Whitaker, Case: 19STCV25874, Date: 2023-03-14 Tentative Ruling

Case Number: 19STCV25874    Hearing Date: March 14, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

              Plaintiffs Stephanie Orantes, individually, and as guardian ad litem for minors Maddox Valdez, Hendrix Valdez, and Silas Valdez (collectively, Plaintiffs), through Counsel Yoon S. Kim, move to set aside the Court’s order of August 3, 2022, in which the Court dismissed the Complaint against Defendants Oscar Maticorena, One Call Constructions, and Isael Valdez Navarette (collectively, Defendants), without prejudice.  The motion is unopposed. 

ANALYSIS

Per Code of Civil Procedure section 473, subdivision (b), a court may “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.” In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “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).)  

The party or the legal representative must seek such relief “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); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4^th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]).  “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.) 

            First, Plaintiffs’ motion is timely.  The entry of dismissal was made on August 3, 2022.  Plaintiffs then filed their motion for relief on December 28, 2022, within six months of the entry of the dismissal. 

            Second, Plaintiffs seek to set aside the dismissal entered on August 3, 2022, due to the fault of Plaintiffs’ counsel.  Plaintiffs’ motion for relief is accompanied by the declaration of Plaintiffs’ counsel, Yoon S. Kim (Counsel), who avers to the following: “The former handling attorney at my office left the firm on or about July 25, 2022. This instant case, among numerous other cases, was transferred for me to handle shortly thereafter. However, the OSC scheduled for August 3, 2022 was not put into the case calendar and/or did not transfer into the my calendar. Thus, I failed to appear at the OSC. As a result, the Court dismissed the case at the OSC when no appearances were made.”  (Declaration of Yoon S. Kim, ¶ 6.)  Counsel concludes that the failure to calendar the August 3, 2022, Order to Show Cause and the subsequent failure to appear was due to Counsel’s mistake, inadvertence, surprise, or neglect.

            Based on the timely request to vacate the dismissal supported by an attorney affidavit admitting to attorney fault, the Court finds Plaintiffs’ motion to set aside dismissal conforms with the requirements under Code of Civil Procedure section 473, subdivision (b).

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiffs’ motion to set aside dismissal and orders the dismissal entered on August 3, 2022 vacated.

            Further, the Court sets an Order to Show Cause re Dismissal (Settlement) on April 18, 2023 at 8:30 A.M. in Department 32.  No appearance is required at the Order to Show Cause if a Request for Dismissal is filed and dismissal of the action is entered before the scheduled Order to Show Cause. 

Plaintiffs shall provide notice of the Court’s orders and file a proof of service of such.