Judge: Michael E. Whitaker, Case: 21STCV02094, Date: 2023-04-24 Tentative Ruling

Case Number: 21STCV02094    Hearing Date: April 24, 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 Rolessi Casa Valdes (Plaintiff) through counsel, James A. Allaire (Counsel), moves to set aside the Court’s order of September 7, 2022, in which the Court dismissed the Complaint against Defendant RBRPB, LCC dba Club Tempo (Defendant), without prejudice.  Defendant has not filed an opposition.

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, Plaintiff’s motion is timely.  The entry of dismissal was made on September 7, 2022.  Plaintiff then filed his application for relief on February 24, 2023, within six months of the entry of the dismissal.  (See Code Civ. Proc., § 1013, subd. (a); see also Cal. Rules of Court § 1.10, subds. (a), (b).)

            Second, Plaintiff seeks to set aside the dismissal entered on September 7, 2022, due to the fault of Plaintiff’s counsel.  Plaintiff’s application for relief is accompanied by the declaration of Plaintiff’s counsel, James A. Allaire (Counsel).  Counsel avers that he did not file a Request for Entry of Default by the time of dismissal because on September 2, 2022, counsel for Defendant filed with the court his Declaration of Demurring or Moving Party in Support of Automatic Extension asking for an automatic 30-day extension of time within which to respond.  (Declaration of James A. Allaire, ¶ 6.)  Counsel further explains that he did not appear at the Order to Show Cause re: Dismissal for Failure to Enter Default/alternatively Trial Setting Conference, set for hearing on September 7, 2022, because his office failed to calendar the hearing do to an inadvertent and uncommon oversight.  (Declaration of James A. Allaire, ¶ 7.)

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

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiff’s motion to set aside dismissal and orders the  dismissal entered on September 7, 2022 vacated.  Notwithstanding, the Court sets an Order to Show Cause re: dismissal for failure to enter default/default judgment, or in the alternative Trial Setting Conference, on June 16, 2023 at 8:30 A.M. in Department 32. 

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