SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background Facts 

On February 25, 2021, Plaintiff Zaydell Falk (“Plaintiff”) filed this action against Defendant Enrique Caballero (“Defendant”) for damages arising from a motor vehicle incident.   

On August 25, 2022, this matter was called for a non-jury trial, and after no appearances by or for either party, the Court dismissed Plaintiff’s complaint without prejudice. (Min. Order, Aug 25, 2022.)   

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

 

II. Motion to Set Aside  

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.) 

A mistake is a basis for relief under CCP § 473 when by reason of the mistake a party failed to make a timely response. Surprise occurs when a party is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the party has shown some reasonable excuse for the default.  (Credit Managers Association of California v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.)  Under CCP § 473, the moving party bears the burden of demonstrating an excusable ground, such as fraud or mistake, justifying a court’s vacating a judgment.  (Basinger v. Roger & Wells (1990) 220 Cal.App.3d 16, 23-24.)    

Here, Plaintiff’s counsel (“Counsel”) provides that the non-jury trial date was not correctly entered into Counsel’s calendar, and Counsel doubts as to whether the date was ever properly placed in Counsel’s file and on calendar. Counsel declares a turnover in employees at his firm, and certain deadlines were uncalendared. Counsel avers that steps have been taken to remedy this issue to prevent future occurrences. Generally, excusable neglect and a basis for relief has been found where an attorney relies on an employee or calendaring system to calendar deadlines, and the employee or system fails. (Renteria v. Juvenile Justice, Dept. of Corrections & Rehabilitation (2006) 135 Cal. App. 4th 903, 911.)  

Because Plaintiff timely filed this instant motion within six months of dismissal, and establishes dismissal was the result of Counsel’s excusable neglect for failure to appear due to a calendaring issue, the motion to set aside the dismissal is GRANTED and the action is reinstated.    

 

Plaintiff is ordered to give notice.   

 

PLEASE TAKE NOTICE: 

 

Dated this 29th day of September 2023