Judge: Peter A. Hernandez, Case: 21PSCV00574, Date: 2023-09-26 Tentative Ruling

Case Number: 21PSCV00574    Hearing Date: September 26, 2023    Dept: K

Plaintiff Terry Halley’s Motion to Set Aside Dismissal is GRANTED.

Background[1]  

Plaintiff Terry Halley (“Plaintiff”) alleges as follows:

On December 27, 2019, Plaintiff purchased a 2015 Dodge Challenger, VIN #2C3CDZAT7FH757551 (“subject vehicle”) from Nuovo Milennio Auto Group LLC dba Avision Auto (“Dealer”). Dealer represented that it had title to the subject vehicle; however, the subject vehicle has been repossessed.

On July 14, 2021, Plaintiff filed a complaint, asserting causes of action against Dealer, Hudson Insurance Company (“Bond”) and Does 1-50 for:

1.                  Violation of the Consumer Legal Remedies Act

2.                  Claim Against Dealer Bond

On March 10, 2023, the court dismissed the instant case without prejudice for Plaintiff’s failure to prosecute.

Legal 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 . . .

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. . .” (Code Civ. Proc., § 473, subd. (b).)

Discussion

Plaintiff moves the court for an order, pursuant to Code of Civil Procedure § 473, subdivision (b), setting aside the dismissal of this case on the basis of inadvertence, surprise, mistake, or excusable neglect.

Ecourt records reflect that the court dismissed the instant case without prejudice on March 10, 2023 for Plaintiff’s failure to prosecute. The instant motion was filed on August 30, 2023, which is within six months after the dismissal.

Plaintiff’s counsel Pauliana N. Lara (“Lara”) attests that “for reasons unknown” the December 12, 2022 Case Management Conference “did not make it onto the firm’s calendar,” such that Plaintiff did not appear. (Lara Decl., ¶ 8). Lara further attests that “HUDSON prepared and sent a Notice of Ruling on December 16, 2022 advising of the continued hearing to March 10, 2023. I believe our firm noted this an [sic] an ‘interpleader’ matter and again for no good reason this matter was not saved under the Invidual [sic] client's calendar and once again did not appear as a mandatory hearing for us.” (Id., ¶ 9).

The motion is granted, and the case is ordered restored to the civil active list.