Judge: Serena R. Murillo, Case: 20STCV28031, Date: 2022-10-17 Tentative Ruling

Case Number: 20STCV28031    Hearing Date: October 17, 2022    Dept: 29

Edgar Guevara, et al. v. Daniel Virgen Vazquez, et al.

Monday, October 17, 2022 

TENTATIVE

Plaintiffs Edgar Guevara and Lourdes Viramontes’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 January 21, 2022.  This Motion to Set Aside the Dismissal was filed on April 15, 2022, within six months after dismissal was entered, and within a reasonable time.

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 counsel. On January 21, 2022, the Court dismissed the entire action without prejudice for lack of prosecution pursuant to C.C.P. Section 581(b)(3) when Plaintiff’s counsel did not appear for trial. Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting that the hearing dates for the FSC and trial were not scheduled on his calendar, and as a result, he did not appear at the trial.. (Sua Decl., ¶¶ 5-15.)

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

Conclusion

Accordingly, Plaintiffs’ Motion to Set Aside the Dismissal is GRANTED.