Judge: Salvatore Sirna, Case: 23PSCV01954, Date: 2025-03-11 Tentative Ruling

Case Number: 23PSCV01954    Hearing Date: March 11, 2025    Dept: G

Plaintiff Jessica De Leon’s Motion for Mandatory Relief Pursuant to CCP § 473(b)

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff Jessica De Leon’s Motion for Mandatory Relief Pursuant to CCP § 473(b) is CONTINUED to a date to be determined at the hearing set in Department G (Pomona).

The Court orders Plaintiff Jessica De Leon’s Counsel to submit a supplemental declaration from Mary Guirguis that provides additional detail on why Mary Guirguis is responsible. In the alternative, Plaintiff Jessica De Leon may instead provide a declaration from Delina Yasmeh. In either instance, such supplemental declarations must be submitted no later than nine (9) court days before the next scheduled hearing on the present motion.

BACKGROUND

This is a premises liability action. On June 29, 2023, Plaintiff Jessica De Leon filed a complaint against Defendants Five Star Inn One LLC (Five Star Inn One) and Five Star Inn Two LLC (Five Star Inn Two, collectively the Five Star Inns), alleging causes of action for (1) general negligent and (2) premises liability.

On November 19, 2024, De Leon’s counsel failed to appear for a CMC and OSC Re: Dismissal for Failure to Prosecute. After De Leon’s counsel failed to appear on December 3, 2024, the court dismissed De Leon’s Complaint without prejudice pursuant to Code of Civil Procedure section 575.2.

On December 18, 2024, De Leon filed the present motion. A hearing on the motion is set for March 11, 2025.

ANALYSIS

De Leon seeks to vacate the court’s dismissal of De Leon’s action on the grounds of counsel’s neglect, mistake, or inadvertence. For the following reasons, the court CONTINUES the hearing on De Leon’s motion.

Legal Standard

Whenever an application for relief from dismissal is made no more than six (6) 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, De Leon’s counsel, Mary Guirguis, states De Leon’s other counsel, Delina Yasmeh, failed to appear due to severe medical issues and hospitalization. (Guirguis Decl., ¶ 5-6.) Guirguis states Yasmeh failed to calendar the hearings at issue and communicate these dates to others at counsel’s firm. (Guirguis Decl., ¶ 5-6.) Guirguis also admits to full responsibility for the dismissal, even though Guirguis fails to state how Guirguis bore responsibility for the dismissal. (Guirguis Decl., ¶ 7.)

Accordingly, the court CONTINUES the hearing on De Leon’s motion and orders De Leon’s counsel to submit a supplemental declaration from Guirguis that provides additional detail on why Guirguis is responsible. In the alternative, De Leon may instead provide a declaration from Yasmeh setting forth Yasmeh’s reasons for failing to appear and to prosecute the case.

In either instance, such supplemental declarations must be submitted no later than nine (9) court days before the next scheduled hearing on the present motion.