Judge: Peter A. Hernandez, Case: 23STCV03001, Date: 2024-12-17 Tentative Ruling

Case Number: 23STCV03001    Hearing Date: December 17, 2024    Dept: 34

Felix Pfeifle v. Alltrust Moving and Storage, Inc. (23STCV03001)

Plaintiff Felix Pfeifle’s Motion to Set Aside/Vacate Dismissal is GRANTED.

Background

On February 10, 2023, Plaintiff Felix Pfeifle (“Plaintiff”) filed a complaint against Defendant Alltrust Moving and Storage, Inc. (“Defendant”) arising from Plaintiff’s use of Defendant’s moving services alleging causes of action for:

1.               Deceit;

2.               Extortion;

3.               B&P Code 17200 et. seq.;

4.               Civil RICO; and

5.               Negligence.

On December 8, 2023, the court denied Defendant’s Motion to Dismiss for Forum Non Conveniens.

On January 17, 2024, at the request of Plaintiff, the Clerk’s Office entered default on Defendant.

On March 6, 2024, the court held an OSC re Entry of Default Judgment. Plaintiff failed to file any of the required documents for Entry of Default Judgement. The court denied the Entry of Default Judgement, and stated, “The Court sets an[] OSC re Entry of Default Judg[]ment for April 19, 2024. If default judgment is not entered by that time, the Court will dismiss the case.” (Minute Order, dated March 6, 2024.)

On April 19, 2024, the court dismissed the case without prejudice as Plaintiff failed to file any documents for Entry of Default Judgment.

On October 15, 2024, Plaintiff filed this Motion to Vacate Dismissal. No other responsive pleading has been filed.

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. . . . No affidavit or declaration of merits shall be required of the moving party. 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).)

            Section 473(b) provides for two distinct types of relief. “Under the discretionary relief provision, on a showing of “mistake, inadvertence, surprise, or excusable neglect,” the court has discretion to allow relief from a “judgment, dismissal, order, or other proceeding taken against” a party or his or her attorney. Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of “mistake, inadvertence, surprise, or neglect,” the court shall vacate any “resulting default judgment or dismissal entered.” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 615–616.)

Discussion

            Plaintiff moves the court for relief pursuant to Code of Civil Procedure section 473, subdivision (b). (Motion, at p. 2.) Specifically, Plaintiff moves the court to vacate the dismissal of this action entered on April 19, 2024, due to Plaintiff’s counsel’s mistake, inadvertence, surprise, or neglect under the mandatory relief provision of section 473(b). (Ibid.)

            Plaintiff’s counsel, Thomas W. Kielty (“Counsel”), declares that Counsel misread his calendar and believed that the April 19, 2024, hearing was the deadline to file the series of documents requested by the court at the OSC hearing on March 6, 2024. (Kielty Decl., ¶ 6.) As such, Plaintiff failed to attend the April 19, 2024 hearing. (Id., ¶ 7.) Additionally, Counsel declares to have been involved in multiple trials from January 1, 2024, until April 19, 2024. (Id., ¶¶ 9-18.) Counsel declares to have filed the requested prove up package on April 19, 2024, however it was rejected as it had been filed after the court had already dismissed the case for failure to appear at the hearing. (Id., ¶¶ 20, 27.) Counsel attaches the proposed documents to be filed if relief is granted. (Id., Exh. A.)

            The court finds that the present motion is timely. Additionally, Plaintiff’s counsel has submitted a declaration attesting to his mistake in failing to file the documents requested by the court. The dismissal was a direct result of Counsel’s error granting Plaintiff mandatory relief under section 473(b). As all statutory requirements to set aside and vacate dismissal of this action are present, Plaintiff’s motion is granted.

Conclusion

Plaintiff Felix Pfeifle’s Motion to Set Aside/Vacate Dismissal is GRANTED.