Judge: Michael E. Whitaker, Case: 23SMCV00829, Date: 2024-01-08 Tentative Ruling
Case Number: 23SMCV00829 Hearing Date: March 29, 2024 Dept: 207
TENTATIVE RULING
DEPARTMENT 207
HEARING DATE March 29, 2024
CASE NUMBER 23SMCV00829
MOTION Motion
to Set Aside/Vacate Dismissal
MOVING PARTY Plaintiff
Sarah Allwardt
OPPOSING PARTY none
MOTION
Plaintiff moves to set aside the dismissal with prejudice of the
entire action, entered on September 11, 2023.
Plaintiff’s motion is unopposed.
LEGAL
STANDARD – SECTION 473 RELIEF
Code of Civil procedure section 473
“includes a discretionary provision, which applies permissively, and a mandatory
provision, which applies as of right.” (Minick v. City of Petaluma
(2016) 3 Cal.App.5th 15, 25 (hereafter Minick).) “Section 473 is a remedial statute to be
“applied liberally” in favor of relief if the opposing party will not suffer
prejudice. Because the law strongly
favors trial and disposition on the merits, any doubts in applying section 473
must be resolved in favor of the party seeking relief from default. Unless inexcusable neglect is clear, the
policy favoring trial on the merits prevails.”
(Minick, supra, 3 Cal.App.5th at p. 24 [cleaned up].)
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.4th 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.)
1. DISCRETIONARY RELIEF
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.”
2. MANDATORY RELIEF
Notwithstanding any other requirements of this
section, the court shall, whenever an application for relief is made no more
than six months after entry of judgment, is in proper form, and is accompanied
by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any
(1) resulting default entered by the clerk against his or her client, and which
will result in entry of a default judgment, or (2) resulting default judgment
or dismissal entered against his or her client, 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).) “In considering whether the trial court
properly denied relief under section 473(b), the first question is the
sufficiency of defendants' showing of attorney fault, if believed, to trigger
the mandatory relief provisions of that statute.” (Standard Microsystems Corp. v. Winbond
Electronics Corp. (2009) 179 Cal.App.4th 868, 896, disapproved on other
grounds by Even Zohar Construction & Remodeling, Inc. v. Bellaire
Townhouses, LLC (2015) 61 Cal.4th 830 (hereafter Standard).) “Under section 473(b), a party is entitled to
relief from a default and resulting judgment whenever, on timely application
for relief, his attorney ‘attest[s] to his or her mistake, inadvertence,
surprise, or neglect’ in connection with the default or the judgment.” (Ibid.)
In Standard, counsel for the
defendants attested that he believed the service of the summons on defendants
was defective and informed defendants that they were not required to answer the
summons under the laws of the United States.
Defense counsel also did not advise the defendants to take any
affirmative action, for example move to quash the service of the summons. Defense counsel also indicated that he
expected to “receive notice of any application for entry of default before
default was entered so that we could respond.” “He also acknowledged that he was responsible
for advising defendants in connection with, and preparing, the first motion for
relief from the default; that in doing so he “believed that the Court would set
aside any default because of an invalid service of process”; and that he
omitted “any argument showing that there was a ‘mistake, inadvertence,
surprise, or excusable neglect’ in WEC and Winbond Israel's motions.” Although
he did not separately point it out, he also indisputably omitted from
defendants' first motion any invocation of the mandatory relief provisions of
section 473(b), and the required showing to support such an invocation.” (Standard, supra, 179 Cal.App.4th at
p. 897.)
After considering the record before
the trial court, the appellate court held that “Counsel's mistakes, in
contrast, entitled them to relief . . . .
[defense counsel's] affidavit and the record as a whole overwhelmingly
established that the default and ensuing judgment were the products of attorney
fault.” (Standard, supra, 179
Cal.App.4th at p. 900.)
Further, “[t]he court's
determination of whether the default was caused by the attorney's mistake,
inadvertence, surprise, or neglect is in part a credibility determination. Credibility is an issue for the fact finder,
we do not reweigh evidence or reassess the credibility of witnesses.. When the
evidence gives rise to conflicting reasonable inferences, one of which supports
the findings of the trial court, the trial court's finding is conclusive on
appeal.” (Cowan v. Krayzman
(2011) 196 Cal.App.4th 907, 915 [cleaned up].)
ANALYSIS
Plaintiff has provided the attorney
declaration of Barry S. Zelner, indicating:
2. This case is a three-car accident involving
Tyler Parris, Elena Rodriguez Pena. The
case was initially filed against Tyler Parris as it was believed that he would
be the sole cause of the accident. It
was subsequently discovered that Elena Rodriguez Pena had insurance and would
accept partial liability for the accident.
We intended to do a DOE amendment.
3. Prior to filing the DOE amendment to the
complaint to bring Elena Rodriguez Pena into the case, we settled the case with
Tyler Parris. Inadvertently, my
secretary, Lidia Ramirez, filed a dismissal of the entire action and it only
should have been dismissed as to Tyler Parris.
4. Clearly if the Court does not grant the
amendment to the dismissal it would be a hardship on my client who would
possibly be entitled to additional monies for the personal injuries she
suffered as a result of the car accident.
(Zelner
Decl. ¶¶ 2-4.)
As such, Plaintiff has satisfied the
initial burden of establishing that the dismissal without prejudice was a
result of attorney mistake or inadvertence.
On January 8, the Court continued
the hearing to enable Plaintiff to properly serve notice of the motion and
hearing on Defendant Tyler Parris.
Plaintiff has since filed a Notice of Continuance, with moving papers
attached, indicating Defendant was served by mail on January 9, 2024.
Therefore, the Court finds that Defendant has now been properly served.
Conclusion
Therefore, the Court grants Plaintiff’s
unopposed request and sets aside the dismissal entered on September 11, 2023.
Further,
the Court sets a Status Conference regarding the amendment to the Complaint on June
7, 2024 at 8:30 A.M. in Department 207.
Plaintiff
shall provide notice of the Court’s ruling and file a proof of service
regarding the same.
DATED: March 29, 2024 ___________________________
Michael E. Whitaker
Judge of the Superior Court