Judge: Michelle C. Kim, Case: 22STCV19837, Date: 2024-04-19 Tentative Ruling

Case Number: 22STCV19837    Hearing Date: April 19, 2024    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

SANDRA RIESTRA, ET AL., 

Plaintiff(s), 

vs. 

 

LEONEL MAYORQUIN, ET AL., 

 

Defendant(s). 

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      CASE NO: 22STCV19837 

 

[TENTATIVE] ORDER GRANTING MOTION TO SET ASIDE DISMISSAL 

 

Dept. 31 

1:30 p.m.  

April 19, 2024 

 

I. BACKGROUND  

Plaintiffs Sandra Riestra, Matthias Riestra, and Dylan Riestra (“Plaintiffs”) filed this action against defendants Leonel Mayorquin and Leonel Mayorquin Jr. for damages arising from a motor vehicle v. pedestrian incident.   

On December 15, 2023, this matter was called for non-jury trial. After no appearances or contact by either party, Plaintiffs’ complaint was dismissed without prejudice. (Min. Order, Dec. 15, 2023.)   

On January 16, 2024, Plaintiffs filed the instant motion to set aside the dismissal.  

 

II. MOTION TO SET ASIDE  

  1. Legal Standard  

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.) 

 

  1. Discussion and Conclusion 

Plaintiffs’ counsel (“Counsel”) declares she was ready to appear for the hearing, but was unable to do so due to a clerical mistake by her paralegal. Counsel provides that her paralegal is responsible for maintaining Counsel’s calendar, setting up remote appearances, and to upload all relevant documents such as the Court Call information. Counsel declares her paralegal did not register with Court Call prior to the hearing, and it was due to this clerical error with registration that Counsel did not appear. Further, Counsel provides that this matter has settled, and requests the dismissal be set aside so that a minor’s compromise may be filed on behalf of minor plaintiff Matthias Riestra.    

Here, Counsel’s affidavit of mistake regarding the calendaring error is sufficient to set aside the dismissal. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 609- 10 [In order to qualify for mandatory relief, an affidavit from an attorney must be a straightforward admission of fault.].) Because Plaintiff timely filed this instant motion within six months of dismissal, the motion to set aside the dismissal is GRANTED and the action is reinstated.   

 

Moving party 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 18th day of April 2024 

 

  

 

 

Hon. Michelle C. Kim 

Judge of the Superior Court