Judge: Michael E. Whitaker, Case: 23SMCV01862, Date: 2024-01-05 Tentative Ruling


Case Number: 23SMCV01862    Hearing Date: February 14, 2024    Dept: 207

TENTATIVE RULING

 

DEPARTMENT         207

HEARING DATE      February 14, 2024

CASE NUMBER       23SMCV01862

MOTION                    Motion to Set Aside/Vacate Dismissal

MOVING PARTY     Plaintiff Christian Jones

OPPOSING PARTY  none

 

MOTION

 

Plaintiff moves to set aside the dismissal without prejudice previously entered by the Court on September 13, 2023 and to enter a dismissal with prejudice.  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 William White, counsel for Plaintiff, indicating:

 

3. On September 12, 2023, my firm filed a Request for Dismissal “without prejudice” in relation to case number 23SMCV01862. Attached as “Exhibit 2” is a true and correct copy of the Request for Dismissal.

 

4. After having filed the Request for Dismissal, Plaintiff’s Counsel realized that the settlement was conditioned upon filing the Request for Dismissal “with prejudice.” Attached as “Exhibit 3” is a true and correct copy of the Settlement Agreement.

 

5. Due to excusable neglect and inadvertence, we now submit this Motion to Set Aside Dismissal and Reinstate the Case so that we may immediately file a Request for Dismissal “with prejudice.”

 

            As such, Plaintiff has satisfied his burden of establishing that the dismissal without prejudice was a result of attorney mistake or inadvertence.

 

Conclusion

 

            Therefore, the Court grants Plaintiff’s unopposed request, sets aside the dismissal without prejudice entered on September 13, 2023, and orders the dismissal of September13, 2023 vacated. 

 

            Further, the Court orders Plaintiff to resubmit forthwith a Request for Dismissal seeking to dismiss the entire action with prejudice. 

 

            Further, the Court sets an Order to Show Cause re Dismissal on March 8, 2024 at 8:30 A.M. in Department 207.  No appearance will be necessary if a dismissal of the action is entered before the March 8, 2024 hearing

 

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

 

 

 

DATED: February 14, 2024                                                   ___________________________

Michael E. Whitaker

                                                                                          Judge of the Superior Court