Judge: Serena R. Murillo, Case: 20STCV15125, Date: 2023-03-13 Tentative Ruling
Case Number: 20STCV15125 Hearing Date: March 13, 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 March 14, 2022. This Motion to Set Aside the Dismissal was
filed on September 9, 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 March 14, 2022, the entire action
was dismissed without prejudice pursuant
to Code of Civil Procedure Section(s) 583.410, 583.420 and California Rules of
Court, Rule(s) 3.110(b) and (f), when Plaintiff did not appear for Order to
Show Cause Re: Dismissal/Failure to File Proof of Service. 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.
9-11.)
Because
Plaintiff’s counsel has sufficiently established mistake, inadvertence or
neglect, the dismissal must be set aside.
Conclusion