Judge: Michael E. Whitaker, Case: 20STCV48588, Date: 2023-04-18 Tentative Ruling

Case Number: 20STCV48588    Hearing Date: April 18, 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

              Plaintiff Wentzel Witzgall (“Plaintiff”) through Plaintiff’s legal representative, Fabi Benham (“Counsel”), moves to set aside the Court’s order of February 2, 2023, in which the Court dismissed Plaintiff’s complaint against Defendants Lorena Rosales, the County of Los Angeles, and the State of California (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 Cal.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.) 

            Preliminarily, Plaintiff’s motion is timely because Plaintiff filed the motion less than six months after the Court dismissed the action on February 2, 2023.

            The Court finds that Plaintiff’s failure to appear at the Order to Show Cause Re: Dismissal (Settlement) was the result of mistake, inadvertence, surprise, or excusable neglect. Plaintiff advances the declaration of Counsel for Plaintiff. Counsel avers that Plaintiff failed to appear at the Order to Show Cause Re: Dismissal (Settlement) because Plaintiff did not receive the Minute Order setting the date for the Order to Show Cause Re: Dismissal (Settlement). (Declaration of Fabi Benham, ¶ 10.) Counsel states that this was due to a clerical error. (Declaration of Fabi Benham, ¶ 10.)

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiff’s motion to set aside the Order of Dismissal, and orders the dismissal entered on February 2, 2023 vacated. 

            Further, the Court sets an Order to Show Cause re Dismissal (Settlement) on May 23, 2023 at 8:30 A.M. in Department 32.  No appearance will be necessary if a Request for Dismissal regarding the entire action is filed and entered in advance of the Order to Show Cause hearing. 

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