Judge: Michael E. Whitaker, Case: 20STCV31983, Date: 2022-07-26 Tentative Ruling

Case Number: 20STCV31983    Hearing Date: July 26, 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 Lynette Boger through her legal representative, Kim H. Pearman (“Counsel”), moves to set aside the Court’s order of May 18, 2022, in which the Court dismissed Plaintiff’s complaint without prejudice for Plaintiff’s failure to appear for Order to Show Cause Re: Sanctions for Failure to File Proof of Service as to County of Los Angeles; Order to Show Cause Re: Dismissal for Failure to Enter Default/Alternatively Trial Setting Conference (“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 she failed to appear for the OSC due to Counsel’s mistake.  In particular, Counsel states: 

That this case should be set aside due to a mistake of not appearing on May 12 18, 2022 due to the fact that a Notice and Acknowledgment of Receipt of serving the City of Los Angeles was filed on February 9, 2022 and the Final Status Conference was continued to July 11, 2022 and Jury Trial was continued to July 25, 2022 (See Exhibit A). These dates were calendared and I mistakenly thought that all other dates were going to be taken off calendar.

(Declaration of Kim H. Pearman, ¶ 3.)  The Court finds Counsel demonstrates her failure to appear for non-jury trial was a result of mistake, inadvertence, and neglect on her part. 

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiff’s motion to set aside the Order of Dismissal, and vacates the order of May 18, 2022, dismissing Plaintiff’s complaint.   

Notwithstanding, the Court sets a Trial Setting Conference on September 13, 2022 at 8:30 A.M. in Department 32.

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