SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background Facts 

On September 2, 2021, Plaintiff Brenda Grandberry (“Plaintiff”) filed this action against Defendants Alonso Leon, German Quintan, Xiomara Sandoval, Gatsby Real Estate LLC, R M E G Realty Corporation, and Dan Gatsby for damages arising from a dog bite attack.   

On March 2, 2023, 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, March 2, 2023.)   

On July 28, 2023, 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”) declares there was a number of calendaring issues, and that mail was no longer being consistently delivered to Counsel’s office at the time of dismissal. Counsel avers that he is attempting to “pick up the pieces” after missing a number of dates on his cases, and with his office failing to follow the court docket. Counsel declares the dismissal was brought to his attention after he moved to a new location, in which he immediately filed the instant motion.  

Because Plaintiff timely filed this instant motion within six months of dismissal, and establishes dismissal was the result of Counsel’s neglect for failure to appear due to calendaring issues, 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 16th day of October 2023