Judge: Michael E. Whitaker, Case: 19STCV44977, Date: 2022-09-22 Tentative Ruling

Case Number: 19STCV44977    Hearing Date: September 22, 2022    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

            Plaintiff Israel Cruz Joaquin, through his legal representative, Z. Dean Hakkak (“Counsel”), moves to set aside the Court’s order of January 27, 2022, in which the Court dismissed Plaintiff’s complaint without prejudice for Plaintiff’s failure to appear and the Order to Show Cause Re: dismissal of action for failure to enter default judgment (“OSC”).  The motion is unopposed. 

ANALYSIS

Per Code of Civil Procedure section 473, subdivision (b), a 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.” 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.) 

            Here, Plaintiff advances Counsel’s declaration.  Counsel avers that he failed to appear at the OSC due to calendaring errors.  (Declaration of Z. Dean Hakkak, ¶¶ 4-5.)  The Court finds Counsel demonstrates his failure to appear at the OSC was a result of mistake, inadvertence, and neglect on his part. 

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiff’s motion to set aside the Order of Dismissal, and vacates the order of January 27, 2022, dismissing Plaintiff’s complaint.   Notwithstanding, the Court sets an Order to Show Cause re dismissal of action for failure to enter default judgment on NOVEMBER 21, 2022 at 8:30 A.M. in Department 32.