Judge: Serena R. Murillo, Case: 20STCV07827, Date: 2023-03-20 Tentative Ruling

Case Number: 20STCV07827    Hearing Date: March 20, 2023    Dept: 29

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED.

Legal Standard

Code of Civil Procedure §473(b) provides for mandatory and discretionary relief from dismissal.  “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him through his or her mistake, inadvertence, surprise, or excusable neglect.”  CCP §473(b).  Where such an application for discretionary relief is made, the motion shall be accompanied by a copy of the answer or pleading proposed to be filed, or the application will not be granted.  (Id.)  The court must grant relief from dismissal where the application is accompanied by an attorney affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.  (Id.)  In either case, the application must be made within a reasonable time, and in no case exceeding six months after the judgment.  (Id.) 

Discussion

Here, the motion is timely filed.  The action was dismissed on July 13, 2022.  This Motion to Set Aside the Dismissal was filed on November 23, 2022, within six months of the dismissal.

The trial court’s granting or denial of relief under this provision is reviewed for abuse of discretion.   (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.)   It is noted that appellate courts are traditionally “favorably disposed toward such action on the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies on their merits.”  (Mercantile Collection Bureau v. Pinheiro (1948) 84 Cal.App.2d 606, 608, citing Benjamin v. Dalmo Mfg. Co. (1947) 31 Cal.2d 523.)

Plaintiff moves for relief on the ground that dismissal was entered due to the mistake, inadvertence, or neglect of Plaintiff’s counsel. On July 13, 2022, the entire action was dismissed without prejudice, pursuant to Code of Civil Procedure Sections 583.250 and 581(b)(4), when Plaintiff did not appear for Order to Show Cause Re: why monetary sanctions should not be imposed due to Plaintiff’s failure to file a proof of service of the summons and complaint; Order to Show Cause Re: Dismissal for Failure to File Proof of Service; and Trial Setting Conference. Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting that the nonappearance at the OSC hearing was the result of an inadvertent calendaring error. (Panah Decl., ls. 7-11.)

Because Plaintiff’s counsel has sufficiently established mistake, inadvertence or neglect, the dismissal must be set aside.  

Conclusion

 Plaintiff’s Motion to Set Aside the Dismissal is GRANTED.  The court notes that while the case was in dismissed status, Plaintiff filied a proof of service of summons and complaint on Defendant Sherry Wood on January 24, 2023,  approximately one month before the three year statutory deadline. Proof of Service on the Co-Defendant Jeffrey Wood has not been filed.  OSC  Re: Why monetary sanctions in the amount of $750 should not be imposed to Plaintiff's for failure to file a proof of service of the summons and complaint on Jeffrey Wood, failure to appear at the hearing on July 13, 2022, and failure to appear at the Trial Setting Conference on July 13, 2022  is set for May 17, 2023 at 10:00 a.m. Trial is set for October 3, 2023 at 8:30 a.m.; FSC September 20, 2023 at 10:00 a.m.

Moving party to give notice.