Judge Salvatore Sirna, Case Number: 22PSCV01674, Date: 2023-08-17 Tentative Ruling

Judge: Salvatore Sirna, Case: 22PSCV01674, Date: 2023-08-17 Tentative Ruling

Case Number: 22PSCV01674 Hearing Date: August 17, 2023 Dept: G

Plaintiff Thin Thin Win Soe’s Motion to Set Aside Dismissal

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff Thin Thin Win Soe’s Motion to Set Aside Dismissal is GRANTED.

BACKGROUND

This is a personal injury action arising from an automobile accident. On the morning of November 6, 2020, Thin Thin Win Soe exited California State Route 60 in West Covina and was turning northbound onto Azusa Avenue when Pedro Beltran allegedly ran a red light and crashed into Soe. Following the accident, Soe allegedly suffered injuries and had to receive medical treatment.

On November 3, 2022, Soe filed a complaint against Beltran and Does 1-100 alleging the following causes of action: (1) negligence, (2) statutory negligence liability, and (3) negligent infliction of emotional distress (NIED).

On June 15, 2023, Soe’s counsel failed to appear for a case management conference and OSC Re: Default Judgment. As a result, the court set an OSC Re: Sanctions and Dismissal for July 19. After Soe’s counsel failed to appear on July 19, the court dismissed Soe’s Complaint without prejudice pursuant to Code of Civil Procedure section 575.2.

On July 26, 2023, Soe filed the present motion. A hearing on the motion is set for August 17.

ANALYSIS

Soe seeks to vacate the court’s dismissal of Soe’s action on the grounds of inadvertence. For the following reasons, the court GRANTS Soe’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, Soe’s counsel states counsel did not appear for the case management conference on June 15, 2023, due to an inadvertent calendaring error. (Hwu Decl., ¶ 8.) Because Soe’s counsel was not present at the June 15 hearing, counsel also stated they had no notice of the OSC set for July 19. (Hwu Decl., ¶ 8-9.) Counsel also states they never received a copy of the court’s June 15 minute order, even though a clerk's certificate of mailing was filed on June 15, 2023. (Hwu Decl., ¶ 10.) Nevertheless, based on these averments, the court finds Soe’s counsel adequately established the dismissal was a result of inadvertence or neglect.

Accordingly, Soe’s motion is GRANTED. Although Beltran is entitled to reasonable attorney fees and costs pursuant to Code of Civil Procedure section 473, subdivision (b), the court will decline to award any as Beltran did not filed an opposition or declaration requesting any such fees or costs.

CONCLUSION

Based on the foregoing, the court GRANTS Soe’s motion to vacate the dismissal of Soe’s action. Plaintiff's counsel is ordered to confirm that his firm's correct address is on file with the court.