Judge: Nathan Vu, Case: 2017-00918271, Date: 2022-09-19 Tentative Ruling

Motion to Set Aside Dismissal

The motion to set aside dismissal of Plaintiff Shelly Kormeluk is GRANTED.

The Court ORDERS counsel for Plaintiff Shelly Kormeluk to pay $500 to the California State Bar Client Security Fund and submit proof of payment to the court within 30 days.

The Court shall set a hearing on an Order to Show Cause re: Dismissal for Settled Case for 12/22/2022 at 8:30 am in Department N15.

Plaintiff Shelly Kormeluk moves to set aside the dismissal without prejudice entered on 05/19/2022.

Civil Procedure Code section 473(b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable neglect.” (Civil Proc. Code, § 473, subd. (b)).

Section 473(b) permits a court to grant two types of relief. (Leader v. Health Industries of Am., Inc. (2001) 89 Cal. App. 4th 603, 615.) A court may grant discretionary relief upon the moving party’s showing of mistake, inadvertence, surprise or excusable neglect. (Id. at pp. 615-616.) Or a court must grant mandatory relief upon a showing by an attorney declaration of mistake, inadvertence, surprise or neglect. (Id. at p. 616.)

Here, Plaintiff’s counsel has made a showing sufficient to warrant mandatory relief. Plaintiff’s counsel submitted a declaration affirming that he mistakenly failed to appear for the hearing on the Order to Show Cause re: Dismissal set on 05/19/2022.

However, this is the second time that this matter was dismissed because of Plaintiff’s counsel’s failure to appear at the hearing on an Order to Show Cause re: Dismissal. Both times, Plaintiff’s counsel requested and obtained a set aside of the dismissal pursuant to Civil Procedure Code section 473(b).

The court therefore exercises its discretion pursuant to Civil Procedure Code section 473(c)(1) and directs Plaintiff’s counsel to pay $500 to the California State Bar Client Security Fund.

Plaintiff shall give notice of this ruling.