Judge: Michelle C. Kim, Case: 19STCV21240, Date: 2024-05-08 Tentative Ruling


Case Number: 19STCV21240    Hearing Date: May 8, 2024    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

TAMMY LYNN GARDNER, 

Plaintiff(s), 

vs. 

 

MARCOS GUERECA, ET AL., 

 

Defendant(s). 

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      CASE NO: 19STCV21240 

 

[TENTATIVE] ORDER GRANTING MOTION TO SET ASIDE DISMISSAL 

 

Dept. 31 

1:30 p.m.  

May 8, 2024 

 

I. BACKGROUND  

Plaintiff Tammy Lynn Gardner (“Plaintiff”) filed this action against defendants Marcos Guereca, Laura Rabelo, and Does 1 through 10 for damages arising from a motor vehicle v. scooter collision.   

On December 27, 2023, this matter was called for an Order to Show Cause Re: Entry of Judgment. After no appearance by Plaintiff and no default judgment package filed, the Court dismissed Plaintiff action without prejudice pursuant to CCP 581(g), 583.410, 583.130, CRC 3.110(h). (Min. Order, Dec. 27, 2023.)   

On April 2, 2024, Plaintiff filed a motion to set aside the dismissal. On April 15, 2024, Plaintiff filed an amended motion to set aside the dismissal. The Court reviews and considers the later filing only.  

 

II. MOTION TO SET ASIDE  

  1. Legal Standard  

Code Civ. Proc. (“CCP”) § 473 provides for both discretionary and mandatory relief under certain circumstances. “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.” (CCP § 473, subd. (b).) Application for this relief shall be made within a reasonable time, in no case exceeding six months, after judgment, dismissal, order, or proceeding was taken. (Ibid.)  “[T]he 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.”  (Ibid.) 

 

  1. Discussion and Conclusion 

Plaintiff’s counsel (“Counsel”) declares he made a calendaring error, which caused the dismissal of Plaintiff’s action. Counsel provides that while he listened to clerk give the next hearing date, Counsel wrote February 27 instead of December 27, and calendared the hearing date as February 27. As a result of this error, Counsel failed to appear for the hearing.  

Here, Counsel’s affidavit of mistake due to a mistake in writing the correct hearing date is sufficient to set aside the dismissal. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 609- 10 [In order to qualify for mandatory relief, an affidavit from an attorney must be a straightforward admission of fault.].) Because Plaintiff timely filed this instant motion within six months of dismissal, the motion to set aside the dismissal is GRANTED and the action is reinstated.   

 

Moving party is ordered to give notice.   

 

PLEASE TAKE NOTICE: 

  • Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

  • If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ 

  • Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ 

  • If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿ 

 

Dated this 7th day of May 2024 

 

  

 

 

Hon. Michelle C. Kim 

Judge of the Superior Court