Judge: Michelle C. Kim, Case: 20STCV31652, Date: 2023-05-25 Tentative Ruling

Case Number: 20STCV31652    Hearing Date: May 25, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

On August 19, 2020, Plaintiff Elijah Taylor (“Plaintiff”) filed this action against Defendant Phuong Nguyen (“Defendant”) for negligence arising out of a motor vehicle accident.

On February 2, 2022, at the Final Status Conference, counsel for Plaintiff represented that the case had settled.

On September 8, 2022, the Court held an OSC re dismissal (settlement) and neither party appeared. The Court dismissed the action without prejudice per the settlement.

On November 28, 2022, Plaintiff filed the instant unopposed motion to set aside dismissal. 

2. Motion to Set Aside Dismissal

CCP § 473(b) provides that 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.” (CCP § 473(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.” (CCP § 473(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.) 

No proof of service is filed showing that Plaintiff gave the Defendants notice of the instant motion.  Therefore, the Court will take this matter off calendar to give Plaintiff time to file a proof of service of the moving papers. Counsel may continue this motion date through the Court Reservation System. Plaintiff is ordered to file proof of service of the moving papers at least five (5) court days before the next hearing. If Plaintiff fails to file the moving papers, the Court will deny Plaintiff’s motion to set aside the dismissal. 

Plaintiff 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 25^th day of May 2023