Judge: Sandy N. Leal, Case: 2021-01177656, Date: 2023-08-17 Tentative Ruling

Motion to Set Aside/Vacate Dismissal

Plaintiffs Cynthia Roseann Powalski, Jessica Detwiler, and Kristen Moore’s unopposed motion to set aside this Court’s order of dismissal of the entire action issued on February 22, 2023 is GRANTED.

Plaintiff moves pursuant to Code of Civil Procedure Section 473, subdivision (b).

Section 473, subdivision (b) provides in pertinent part: “Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”

Here, Plaintiffs’ counsel, Mark J. Peacock, has submitted a declaration in support of the Motion. Peackcock states that on February 22, 2023, he tried to log in to Orange County’s Zoom remote access to attend the OSC re Dismissal on Settled Case. (Peacock Decl., ¶ 7.) However, he was unable to gain access to the virtual meeting room. (Id.) At least one other counsel was also unable to get into the virtual meeting room. (Id.) As a result, the Court dismissed the entire action without prejudice on February 22, 2023. (ROA No. 110.) Plaintiffs’ counsel has made a showing of mistake or excusable neglect sufficient to warrant relief. 

Further, the application for relief is timely since the application was filed within 6 months of the dismissal of the action on February 22, 2022. Therefore, Plaintiffs have met the requirement for mandatory relief and the Motion should be GRANTED.

OSC re: Dismissal on Settled Case is set for ____ at ___ a.m. in Department C33.

Plaintiffs’ counsel to give notice.