I. BACKGROUND 

On October 10, 2023, Plaintiff, Virgilio Bonilla (“Plaintiff”) filed a Complaint against Defendant, Gaspar Romero, and DOES 1 through 100. The Complaint alleges causes of action for: (1) Motor Vehicle Negligence; and (2) General Negligence.  

On December 7, 2023, attorney for Plaintiff filed a Request for Dismissal of the action without prejudice. On December 12, 2023, the Request for Dismissal of the Action without Prejudice was granted. Plaintiff’s counsel notes that shortly after filing the instant lawsuit, and to no fault of Plaintiff, Plaintiff’s counsel mistakenly internally earmarked the matter as set for Arbitration, which is why Plaintiff’s counsel mistakenly filed the Request for Dismissal.  

As such, Plaintiff now files this Motion to Set Aside Dismissal. 

On January 19, 2024, Plaintiff filed this Motion to Set Aside Dismissal. To date, no opposition has been filed.  

II. ANALYSIS

Pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief are 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.) 

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 mistake, inadvertence, or otherwise. (Declaration of David Merabi, ¶¶ 3-5.) Pursuant to the mandatory relief statute, the Court GRANTS Plaintiff’s motion.  

III. CONCLUSION 

For the foregoing reasons, Plaintiff’s Motion to Set Aside/Vacate Dismissal GRANTED, and the Court places this case back on active calendar. The previously scheduled CM is placed back on calendar for April 30, 8:30 a.m., Inglewood Department 8. 

Moving party to give notice.