SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background Facts 

On September 7, 2021, Plaintiff Jane Doe (“Plaintiff”), an adult, filed this action against Defendants HOTEL Indigo Los Angeles Downtown, et al. for damages arising from allegations of sexual assault and battery.    

On March 7, 2023, this matter was called for Non-Jury Trial, and after no appearance or contact by either party, the Court dismissed Plaintiff’s complaint without prejudice. (Min. Order, March 7, 2023.) 

On March 21, 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.) 

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.) Here, Plaintiffs’ counsel (“Counsel”) declares that his staff unintentionally did not have the date of the Final Status Conference and Non-Jury Trial on their calendaring system, and that Plaintiff’s counsel’s failure to appear was due to his inadvertence and mistake. Generally, regarding miscalendaring, 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.) 

Plaintiff timely filed this instant motion within six months of dismissal and, although perfunctory, establishes the inadvertence for Counsel’s failure to appear was due to Counsel’s staff not calendaring the date. The motion to set aside the dismissal is therefore GRANTED and the action is reinstated.