SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

1. Background Facts 

On June 2, 2021, Plaintiff Maria Teresa Nava (“Plaintiff”) filed this action against Defendant Angel Martinez, Jr. for damages arising from a motor vehicle incident.   

 

On May 31, 2023, this matter was called for an Order to Show Cause Re: Dismissal (Settlement) as to Angel Martinez and Order to Show Cause Re: Dismissal for Failure to File Proof of Service as to U-Haul, and after no appearances by or for Plaintiff, and no communication with the Court as to why there was no appearance that date, the Court dismissed Plaintiff’s complaint without prejudice pursuant to CCP § 581(g).  (Min. Order, May 31, 2023.)   

 

On July 6, 2023, Plaintiff filed the instant motion to set aside the dismissal.   

 

2. Motion to Set Aside Default 

CCP §473(b) provides, 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. … 

 

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 he failed to appear at the hearing because of mistake, inadvertence, surprise, and neglect. (Mot. Decl. Perez, ¶4.) In order to qualify for mandatory relief, an affidavit from an attorney must be a straightforward admission of fault.  (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 609- 10.) Because Plaintiff timely filed this instant motion within six months of dismissal and Counsel’s sworn declaration straightforwardly admits the failure to appear was Counsel’s own blunder, conclusory as it is, the motion to set aside the dismissal is granted and the action is reinstated.