Judge: Serena R. Murillo, Case: 20STCV16245, Date: 2022-08-15 Tentative Ruling

Case Number: 20STCV16245    Hearing Date: August 15, 2022    Dept: 29

TENTATIVE

Plaintiff Saul Vasquez’s untimely Motion to Set Aside the Dismissal is DENIED.

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

Plaintiff seeks relief from dismissal, arguing that due to Plaintiff’s former counsel’s mistake, inadvertence, or excusable neglect, counsel failed to appear at the non-jury trial. On October 27, 2021, the Court dismissed the entire action without prejudice for lack of prosecution pursuant to Code of Civil Procedure section 581(b)(3) when Plaintiff failed to appear for non-jury trial.

However, the motion is not timely filed under C.C.P. § 473.  The action was dismissed on October 27, 2021.  This Motion to Set Aside the Dismissal was filed on June 10, 2022, more than six months after the Court dismissed the complaint and sent notice of the dismissal. The Court does not have authority under C.C.P. § 473(b) to excuse Plaintiff’s noncompliance with the six-month time limit. (See Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4^th 333, 345.)

Conclusion

Accordingly, Plaintiff’s untimely Motion to Set Aside the Dismissal is DENIED.

Moving party is ordered to give notice.