Judge Serena R. Murillo, Case 20STCV21235 2022-08-23 Tentative Ruling

Judge: Serena R. Murillo, Case: 20STCV21235, Date: 2022-08-23 Tentative Ruling

Case Number: 20STCV21235 Hearing Date: August 23, 2022 Dept: 29

TENTATIVE

Plaintiff Ruth Noemi Alvarez’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

The motion is timely filed under C.C.P. § 473(b). The action was dismissed on December 2, 2021. This Motion to Set Aside the Dismissal was filed on May 31, 2022, within six months after dismissal was entered.

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. On December 2, 2021, the Court dismissed the entire action without prejudice for lack of prosecution pursuant to C.C.P. Section 581(b)(3) when Plaintiff did not appear for trial.

On July 13, 2022, the Court continued the matter to allow counsel to file his declaration of fault as it was not attached to the motion.

Now, counsel has filed the declaration of fault attesting that on June 8, 2020, his office received a conformed copy of the Complaint; Civil Case Cover Sheet; Civil Case Cover Sheet Addendum and Statement of Location; Notice of Case Assignment; Standing Order Re Personal Injury Procedures, Central District; First Amended Standing Order Re Final Status Conference; Personal Injury (PI) Courts; and the Alternative Dispute Resolution (ADR) Information Packet. (Fanucchi Decl., ¶ 2.) Howver, the Final Status Conference, Trial and OSC dates were not on the “Notice of Case Assignment” form or the Standing Order Re Personal Injury Procedures. (Id., ¶ 3.) Counsel expected that the Court would set these dates at a later time. (Id., ¶ 5.) On November 16, 2021, his office experienced a covid outbreak including his paralegal, which caused scheduling chaos within our office. On November 18, 2021, his office mistakenly missed the November 18, 2021 hearing due to covid outbreak causing scheduling errors. (Id., ¶ 14-15.) On December 2, 2021, the trial date, Counsel’s paralegal had recovered from covid and contacted the Court Clerk and advised the Clerk we needed a continuance based on series of unfortunate events but the Court Clerk advised there was nothing he could do on that date and the case was dismissed. (Id., ¶ 18.)

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

Conclusion

Accordingly, Plaintiff’s Motion to Set Aside the Dismissal is GRANTED. Trial Setting Conference scheduled for February 7, 2022 at 10:00 a.m.; OSC re: Dismissal for Failure to File Proof of Service scheduled for October 21, 2022 at 8:30 a.m.; OSC re: sanctions for Failure to File Proof of Service October 21, 2022 at 8:30 a.m.; OSC re: Dismissal for Failure to File Proof of Service scheduled for June 5, 2023 at 8:30 a.m.

Moving party is ordered to give notice.