Judge Ronald F. Frank, Case Number: 23TRCV00081, Date: 2023-12-01 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV00081, Date: 2023-12-01 Tentative Ruling

Case Number: 23TRCV00081 Hearing Date: December 1, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: December 1, 2023¿¿

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CASE NUMBER: 23TRCV00081

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CASE NAME: Neil Arnold Paredes v. Shina Alani Adebayo, et al.

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MOVING PARTY: Plaintiff, Neil Arnold Paredes

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RESPONDING PARTY: Defendant, Shina Alani Adebayo (No Opposition)

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DISMISSAL DATE: September 19, 2023

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MOTION:¿ (1) Motion to Set Aside Dismissal

Tentative Rulings: (1) Plaintiff’s Motion to Set Aside Dismissal is GRANTED.

(2) OSC re dismissal for failure to file proof of service on Defendant set for February 9, 2024, 8:30 a.m.

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I. BACKGROUND¿¿

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A. Factual¿¿

On January 10, 2023, Plaintiff, Neil Arnold Paredes (“Plaintiff”) filed a Complaint against Defendant, Shina Alani Adebayo and DOES 1 through 50. The Complaint alleges causes of action for Motor Vehicle Negligence and General Negligence.

On September 19, 2023, this Court, having given notice and finding no appearances at the previous hearings, dismissed this case without prejudice. Per the moving papers, on September 29, 2023, Plaintiff’s counsel received the minute order for the missed hearings and realized the matter was unintentionally not calendared on their calendaring system.

Plaintiff now files a Motion to Set Aside the Dismissal.

B. Procedural

On November 7, 2023, Plaintiff filed this Motion to Set Aside Dismissal. To date, no opposition has been filed. Moreover, there is no proof of service or responsive pleading as to Defendant.

II. ANALYSIS¿

A. 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.)

B. Discussion

Mistake, Inadvertence, Surprise, or Excusable Neglect

Here, Plaintiff’s counsel has noted that due to the dates not being calendared by counsel’s staff in the case management software used, counsel was not aware of the hearing dates and missed the hearing. Plaintiff’s counsel has also noted that the clerk’s notice was sent to attorney John R. Rofael who is no longer with their firm at the firm’s old address. (Declaration of Igor Fradkin (“Fradkin Decl.”), ¶ 5.) Further, he notes that due to a clerical error of Plaintiff’s counsel’s staff the notice of change of handling attorney with the notice of change of address was not filed and thus Plaintiff’s counsel’s office did not receive notice of the September 19, 2023 order to show cause re: failure to file proof of service as to Defendants. (Fradkin Decl., ¶ 7.) He contends that Plaintiff’s counsel’s staff unintentionally did not have the date on their calendaring system and thus, the date was not in their calendar. (Fradkin Decl., ¶ 8.) Fradkin notes that Plaintiff’s counsel’s failure to appear was due to counsel’s inadvertence and mistake, and thus should be placed back on active calendar. (Fradkin Decl., ¶ 10.)

This Court notes that Plaintiff’s counsel has complied with Code of Civil Procedure § 473(b), as this motion has been made within six months, includes an attorney affidavit attesting to his mistake and inadvertence. Pursuant to the mandatory relief statute, the Court GRANTS Plaintiff’s motion.

The Court sets a hearing on an OSC why the case should not be dismissed for the failure to serve the defendant on February 9, 2024, at 8:30 a.m. in Inglewood Department 8. The Court also strongly encourages Plaintiff’s counsel to investigate which other cases his office is handling to ensure that notices of change in handling attorney and notices of change of address have been filed with the Court, to avoid similar issues in other cases.