Judge Ronald F. Frank, Case Number: 22TRCV00906, Date: 2024-01-09 Tentative Ruling

Factual

On October 10, 2022, Plaintiff, Oleg Sverdlov (“Plaintiff”) filed a Complaint against Defendants, Stelle Corporation and Parry Dennis, and DOES 1 through 20. The Complaint alleges a cause of action for: (1) Motor Vehicle Negligence.

On August 8, 2023, counsel for Plaintiff filed a Request for Dismissal of the action with prejudice. However, Plaintiff’s counsel notes that in August 2023, he settled an unrelated, separate UM/UIM matter for Plaintiff, which triggered the regular business practice of filing a Request for Dismissal in the active case. Plaintiff’s counsel notes that due to inadvertence, mistake, or otherwise, the Request for Dismissal was filed in this active matter instead of the other separate matter. Plaintiff now seeks to set apart the dismissal and continue engaging in the litigation process with Defendants, who have been made aware of this inadvertence, mistake, or otherwise, and the Parties have diligently continued to litigate the matter despite it being dismissed by the Court.

Procedural

On December 14, 2023, Plaintiff filed this Motion to Set Aside Dismissal. To date, no opposition has been filed.

II. ANALYSIS

Legal Standard

Pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief is available to parties from a judgment, dismissal, order, or other proceeding.¿ Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.¿ (Code of Civ. Proc. §¿473(b).)¿ Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”¿ (Ibid.)¿ Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.¿ (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“‘[W]hen relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 981-82.)

Discussion

Mistake, Inadvertence, Surprise, or Excusable Neglect

Here, Plaintiff’s counsel has noted that due to inadvertence, mistake, or otherwise, the Request for Dismissal intended to be filed in an unrelated settled case was filed in this current, active case. The Court notes that Plaintiff’s counsel has complied with Code of Civil Procedure § 473(b), as this motion has been made within six months, and includes an attorney affidavit attesting to the fact that the dismissal was due solely to his his mistake, inadvertence, or otherwise. (Declaration of Gene J. Goldsman, ¶ 4.) Pursuant to the mandatory relief statute, the Court GRANTS Plaintiff’s motion.