Judge: Michael E. Whitaker, Case: 21STCV09570, Date: 2023-02-06 Tentative Ruling

Case Number: 21STCV09570    Hearing Date: February 6, 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 Dimitra Semponis (Plaintiff) through counsel, Marvin S. Shebby (Counsel), moves to set aside the Court’s order of September 8, 2022 in which the Court dismissed the Complaint against Defendant Air Rite Conditioning & Refrigeration, Inc. (Defendant), without prejudice.  Defendant has not filed a motion in 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 9, 2022.  Plaintiff then filed their application for relief on December 8, 2022, within six months of the entry of the dismissal.

            Second, Plaintiff seeks to set aside the dismissal entered on September 9, 2022 due to the fault of Plaintiff’s counsel.  Plaintiff’s application for relief is accompanied by the declaration of Plaintiff’s counsel, Marvin S. Shebby (Counsel), who avers to the following: “Due to mistake, inadvertence, and/or neglect of this declarant the FSC and trial dates were not calendared. From the outset of the COVID 19 pandemic this declarant released its legal assistant, and moved operations to a home office, resulting in the added burden of this declarant performing the all work of lawyer and legal assistant.”  (Declaration of Marvin S. Shebby, ¶ 8.)

            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 9, 2022 vacated.

 Notwithstanding, the Court finds that Plaintiff has not filed a proof of service establishing service of the summons and complaint on Defendant within 60 days of the filing of the complaint.  (See Cal. Rules of Court, rule 3.110(b).)  Therefore, the Court sets an Order to Show Cause re why monetary sanctions should not be imposed due to Plaintiff’s failure to file a proof of service of the summons and complaint for APRIL 7, 2023 at 8:30 A.M. in Department 32.   (See Cal. Rules of Court, rule 3.110(f).)   Plaintiff must file any responsive papers at least five calendar days before the Order to Show Cause.  (See Cal. Rules of Court, rule 3.110(i).)  The Court may impose monetary sanctions against Plaintiff or Counsel for Plaintiff, at the time of the Order to Show Cause if Counsel for Plaintiff or Plaintiff fail to appear, or fail to give good cause for the delay in serving the summons and complaint.  (See Code Civ. Proc., §§ 128, 177.5; Cal. Rules of Court, rule 2.30.)  In the alternative, the Court sets a Trial Setting Conference on APRIL 7, 2023 at 8:30 A.M. in Department 32 if  a proof of service establishing service of the summons and complaint is filed before the Order to Show Cause.