Judge: Michael P. Linfield, Case: 22STCV13168, Date: 2023-07-21 Tentative Ruling

Case Number: 22STCV13168    Hearing Date: July 21, 2023    Dept: 34

SUBJECT:         Motion to Set Aside Request for Dismissal

Moving Party:  Plaintiff Maha Moqaddem

Resp. Party:    None

Plaintiff’s Motion to Set Aside Request for Dismissal is DENIED without prejudice.

BACKGROUND:

On April 20, 2022, Plaintiff Maha Moqaddem filed her Complaint against Defendant Jill Janotta on causes of action arising from Defendant’s representation as her public defender.

         On September 28, 2022, by request of Plaintiff, the Clerk’s Office dismissed the Complaint without prejudice. 

        On June 23, 2023, Plaintiff filed a Motion to Set Aside Request for Dismissal.

No opposition or other response has been filed to the Motion.

ANALYSIS:

I.            Legal Standard

“The court may, upon any terms as may be just, 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . No affidavit or declaration of merits shall be required of the moving party. 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).)

“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court. . . .” (Code Civ. Proc., § 1005, subd. (b).)

II.        Discussion

A.      The Parties’ Arguments

Plaintiff moves the Court to: (1) set aside the dismissal of her Complaint; and (2) proceed with the case. (Motion, p. 1 and Decl. Moqaddem, ¶ 5.)

Plaintiff argues: (1) that the issues underlying this action remained even after Plaintiff dismissed the case; (2) that Plaintiff continues to suffer from Defendant’s conduct; and (3) there is no final dismissal order in this case. (Motion, p. 1:18–25 and Decl. Moqaddem, ¶¶ 2–4.)

No opposition or other response has been filed to the Motion.

B.      Discussion

1.       The Motion to Vacate Lacks a Proof of Service

Plaintiff did not attach a proof of service to her Motion, nor did Plaintiff separately file a proof of service regarding the Motion. The Court is not aware of an attempt by Plaintiff to serve Defendant with the Motion, and Plaintiff has not otherwise indicated to the Court that Defendant has notice of the Motion.

Plaintiff is required to serve Defendant in order to move the Court for the relief she seeks. (Code Civ. Proc., § 1005, subd. (b).) This is in the interest of fairness to allow Defendant an opportunity to oppose, accept, or otherwise respond to the Motion.

The Court DENIES without prejudice the Motion for failure to serve the Motion on the opposing party.

2.       Other Concerns about the Motion to Vacate

        The Court notes two other issues with the Motion. These issues are not necessary for the resolution of today’s motion but might become important should Plaintiff file another motion to vacate the dismissal.

First, a Motion for relief pursuant to Code of Civil Procedure section 473, subdivision (b) must “be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted[.]” Plaintiff did not attach such a filing.

Second, more than six months elapsed since the dismissal was entered. Accordingly, the Court now lacks jurisdiction to set aside the dismissal. (Code Civ. Proc., § 473, subd. (b).) Plaintiff has not cited any other grounds upon which the Court may set aside the dismissal.

III.     Conclusion

Plaintiff’s Motion to Set Aside Request for Dismissal is DENIED without prejudice.