Judge: Michelle Williams Court, Case: 21STCV03981, Date: 2022-08-25 Tentative Ruling

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Case Number: 21STCV03981    Hearing Date: August 25, 2022    Dept: 74

21STCV03981           A.R.W. vs RNT, et al.

Motion to Set Aside Dismissal

TENTATIVE RULING:  The Motion to Set Aside Dismissal is GRANTED. The August 12, 2021 dismissal is set aside and the case is restored to the active calendar. The Court sets an OSC Re: Failure to File Proof of Service, an OSC re Dismissal Following Settlement and a Case Management Conference for September 16, 2022 at 8:30 a.m.

Background

On February 1, 2021, Plaintiff A.R.W. filed this action against Defendants RNT and T&G, LLP asserting causes of action for: (1) breach of written agreement; (2) common count- for services rendered; and (3) common count- for open book account. The complaint alleged Plaintiff provided legal services to Defendants and was not compensated therefor.

On August 12, 2021, the Court held a hearing on for the “Order to Show Cause Re: Dismissal Following Settlement; Order to Show Cause Re: failure to file proof of service of all named defendants; Case Management Conference.” The Court noted Plaintiff did not appear and no proof of service had been filed and therefore dismissed the complaint without prejudice.

Motion

On February 14, 2022, Plaintiff filed a motion to set aside dismissal based upon Plaintiff’s counsel’s calendaring error.

The motion is unopposed.

Motion to Vacate Dismissal 

Standard

“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 accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”  (Code Civ. Proc. § 473(b).) This relief is discretionary.

“Notwithstanding any other requirements of this section, the 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. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Ibid.) This relief is mandatory.

The Dismissal is Set Aside

The Court entered the order of dismissal on August 12, 2021. Six months from August 12, 2021 was February 12, 2021, a Saturday. Plaintiff filed the instant motion on February 14, 2021, the first court day thereafter. Therefore, the motion was timely filed within six months.

The motion is accompanied by the declaration of Plaintiff’s counsel Aston Watkins who states “I did not appear at the hearing. The hearing was not on my calendar due to mistake or inadvertence.” (Watkins Decl. ¶ 5.) Watkins further states “I failed to appear at the August 12, 2021 hearing due to inadvertence, mistake or excusable neglect. I did not have the hearing on my calendar. I did not intentionally miss the hearing in this matter. I missed it due to a calendaring error.” (Id. ¶ 7.) Calendaring errors provide a proper basis for relief. (See e.g. Renteria v. Juvenile Justice, Department of Corrections & Rehabilitation (2006) 135 Cal.App.4th 903, 911; Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 980 (“calendar errors by an attorney or a member of his staff are, under appropriate circumstances, excusable.”).)

The motion is GRANTED. Plaintiff is advised to promptly effectuate service of summons upon the Defendants.