Judge: Michelle C. Kim, Case: 20STCV47797, Date: 2023-04-28 Tentative Ruling

Case Number: 20STCV47797    Hearing Date: April 28, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Darlene A. Perrez Torres (“Plaintiff”) filed this action against Defendant Alirio B. Duenas (“Defendant”) for damages arising out of a motor vehicle accident.  

This matter was set for trial on June 14, 2022.  After there were no appearances or contact by either party, Plaintiff’s complaint was ordered dismissed without prejudice.  (Min. Order, June 14, 2022.) 

On December 7, 2022, Plaintiff filed the instant motion to set aside the dismissal.  The motion is unopposed.   

CCP § 473(b) states in pertinent part,

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 made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. … 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 … dismissal entered against his or her client…

(Emphasis added.)   

            In this case, the underlying dismissal was entered on June 14, 2022, and the instant motion was filed on December 7, 2022, which is six months from the date of the dismissal.  Consequently, the motion is timely.

            Plaintiff provides that Plaintiff’s counsel did not receive notice of the June 14, 2022 trial date.  The Court notes that Plaintiff’s complaint lists Plaintiff’s counsel’s address as 1925 Century Park East, Suite 1990 Los Angeles, CA 90067.  However, the Certificate of Mailing for the Standing Order Re: Personal Injury Procedures, which provided the trial date, shows the Standing Order was mailed to Plaintiff’s counsel at 1925 Century Park East, Ste. 1900.  (Certificate of Mailing, filed Jan. 25, 2021.)  The Certificate of Mailing attached to the June 14, 2022 Order of Dismissal also contains this address, which Plaintiff asserts is the incorrect mailing address for Plaintiff’s counsel.  Furthermore, Plaintiff’s counsel provides a declaration stating that counsel failed to monitor this case more closely because Plaintiff’s counsel’s office was closed due to Covid shutdowns and family health issues.   

The Court finds Plaintiff and Plaintiff’s Counsel establish mistake, inadvertence, and excusable neglect in connection with failing to appear at the trial.  The motion is therefore granted.  CCP § 473(b).  The action is reinstated.  The Court sets an Order to Show Cause Re: Dismissal for Failure to File Proof of Service for June 6, 2023 at 8:30 a.m. in department 31.  

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 28^th day of April 2023