Judge: Michael E. Whitaker, Case: 21STCV15145, Date: 2023-01-31 Tentative Ruling

Case Number: 21STCV15145    Hearing Date: January 31, 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 Fredy Deleon Jr. (Plaintiff) through counsel, Daniel E. Selarz (Counsel), moves to set aside the Court’s order of October 19, 2022, in which the Court dismissed Plaintiff’s complaint against Defendant Cody Walter (Defendant) without prejudice. 

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 October 19, 2022.  Plaintiff then filed their application for relief on January 4, 2023, within six months of the entry of the dismissal.

            Second, Plaintiff seeks to set aside the dismissal entered on October 19, 2022, due to the fault of Plaintiff’s counsel.  Plaintiff’s application for relief is accompanied by the declaration of Plaintiff’s counsel, Daniel E. Selarz (Counsel), stating that he failed to make sure that the October 19, 2022, non-jury trial was input into his calendaring program.  (Declaration of Daniel E. Selarz, ¶¶ 2-4.)  Counsel further explains that Plaintiff, after more than thirty unsuccessful attempts to serve, was able to serve Defendant on October 2, 2022.  (Declaration of Daniel E. Selarz, ¶¶ 5-6.)  However, Counsel negligently failed to file the proof of service with the Court prior to the Court’s October 19, 2022 dismissal.  (Declaration of Daniel E. Selarz, ¶ 6.)

            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 October 19, 2022 vacated.

            Further, the Court sets an Order to Show Cause re dismissal for failure to enter default or default judgment, or in the alternative, Trial Setting Conference, on April 4, 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.