Judge: Robert B. Broadbelt, Case: 22STCV15307, Date: 2024-04-15 Tentative Ruling

Case Number: 22STCV15307    Hearing Date: April 15, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Plaintiff and cross-defendant Romana Ortiz

RESPONDING PARTY:       Unopposed

Motion to Set Aside Dismissal

The court considered the moving papers filed in connection with this motion.  No opposition papers were filed.

DISCUSSION

Plaintiff and cross-defendant Romana Ortiz (“Plaintiff”) moves the court for an order     (1) setting aside the dismissal of this action entered by the court on February 14, 2024, pursuant to Code of Civil Procedure section 581, subdivision (b)(3) on the ground that no party appeared for trial, (2) reinstating this case, and (3) permitting the parties to file a Notice of Settlement.  (Feb. 14, 2024 Minute Order, p. 1; Feb. 14, 2024 Order of Dismissal.)

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

Plaintiff has submitted the declaration of her counsel, Roger Haag (“Haag”), in which Haag states that (1) on January 29, 2024, Plaintiff and defendants Diana Covarrubias and Diana’s Flower’s, Inc. agreed to settle this case; (2) Haag instructed his office to file a Notice of Settlement; (3) Haag’s office did not file the Notice of Settlement, but removed all litigation dates from the calendar; (4) Haag, therefore, did not see any February dates on his calendar for this action; and (5) Haag realized that he did not clearly communicate his instructions about the Notice of Settlement.  (Haag Decl., ¶¶ 6-9.) 

The court finds that (1) Plaintiff has filed this motion no more than six months after entry of the February 14, 2024 order of dismissal, and (2) the declaration of Plaintiff’s counsel, Haag, establishes that resulting dismissal was taken as a result of Haag and his office’s mistake, inadvertence, surprise, and neglect in failing to properly file with the court a Notice of Settlement and vacate trial.

However, the court finds that Plaintiff’s motion is not “in proper form” because Plaintiff did not submit a copy of the proposed Notice of Settlement with her motion.  (Code Civ. Proc., § 473, subd. (b); Dollase v. Wanu Water, Inc. (2023) 93 Cal.App.5th 1315, 1324 [“there is precedent stating the Legislature ‘intended the phrase “ ‘in proper form’ ” to encompass the mandate that the application for relief . . . be accompanied by the pleading proposed to be filed therein’”].)  Thus, the court exercises its discretion to continue the hearing on Plaintiff’s motion to allow Plaintiff an opportunity to lodge a copy of the proposed Notice of Settlement of Entire Case (CM-200) with the court.[1]

ORDER

            The court orders that plaintiff and cross-defendant Romana Ortiz’s motion to set aside dismissal is continued to April 29, 2024, at 10:00 a.m.

            The court orders plaintiff and cross-defendant Romana Ortiz to give notice of this ruling and to file a proof of service of the notice of ruling with the court.

IT IS SO ORDERED.

DATED:  April 15, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court