Judge: Salvatore Sirna, Case: 22PSCV01249, Date: 2023-07-10 Tentative Ruling

Case Number: 22PSCV01249    Hearing Date: July 10, 2023    Dept: G

Plaintiff El Monte Community Credit Union’s Motion for Order Vacating the Dismissal of the Case

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff El Monte Community Credit Union’s Motion for Order Vacating the Dismissal of the Case is GRANTED.

BACKGROUND

This is a collections action. On July 26, 2017, Defendant Illona Ann Thompson filed a petition for bankruptcy. On October 12, a reaffirmation agreement was filed that reaffirmed Defendant’s debt owed to Plaintiff El Monte Community Credit Union. Subsequently, Plaintiff alleges Defendant stopped making agreed-upon payments and currently owes $10,135.14 plus interest.

On October 12, 2022, Plaintiff filed a complaint against Defendant, California Department of Motor Vehicles (DMV), and Does 1-100, alleging the following causes of action: (1) breach of agreement, (2) claim and delivery, (3) injunctive relief, and (4) conversion.

At a case management conference and OSC Re: Failure to File Proof of Service on February 14, 2023, Plaintiff failed to appear. The court then continued the case management conference and OSC to March 13 while also setting an OSC Re: Dismissal for Failure to Prosecute and/or Sanctions for the same day. On March 15, Plaintiff again failed to appear and the court dismissed Plaintiff’s action without prejudice.

On May 22, 2023, Plaintiff filed the present motion. A hearing on the motion is set for July 10.

ANALYSIS

Plaintiff seeks to vacate the court’s dismissal of Plaintiff’s action on the grounds of inadvertence or surprise. For the following reasons, the court GRANTS Plaintiff’s motion.

Legal Standard

Whenever an application for relief from dismissal is made no more than six months after entry of the judgment of dismissal, is in proper form, and is accompanied by the moving party’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or excusable neglect, the court may vacate any dismissal entered against the moving party unless the court finds that the dismissal was not in fact caused by the moving party’s mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., §473, subd. (b).) The court shall grant relief if the moving party’s counsel provides a “sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).) “The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc., § 473, subd. (b).) “The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.)

Discussion

In this case, Plaintiff’s counsel states counsel did not receive notice of any hearing in this matter. (Simon Decl., ¶ 6.) On October 13, 2022, the court mailed notice of the February 14 case management conference to the address of Plaintiff’s counsel at 9846 White Oak Avenue in Northridge. On December 1, the court mailed another notice to Plaintiff’s counsel at the same address that informed Plaintiff of this action’s reassignment to another department in the same courthouse. However, while the court directed the clerk to give notice at the conclusion of the February 14 case management conference, no notice appears to have been filed.

While Plaintiff’s counsel states the Northridge address was correct during the month of October 2022, Plaintiff’s counsel subsequently moved. (Simon Decl., ¶ 6.) The declaration submitted by counsel fails to address whether counsel timely filed with the court a notice of change of address after moving from the Northridge address. It does not appear that a notice has been filed.  To the extent counsel neglected to file with the court a notice of change address, one is to be filed forthwith.

Counsel does state, however, that counsel had a forwarding order with USPS and did receive the court’s most recent notice of dismissal. (Simon Decl., ¶ 6-7.) Because it appears counsel did not receive notice of the March 13 case management conference and it is possible that the October 13 notice was lost in the mail, the court finds Plaintiff’s counsel has adequately established the dismissal was a result of inadvertence, surprise, or neglect.

CONCLUSION

Accordingly, Plaintiff’s motion is GRANTED. Plaintiff to submit an order consistent with the court’s ruling.