Judge: Serena R. Murillo, Case: 20STCV28483, Date: 2022-08-19 Tentative Ruling

Case Number: 20STCV28483    Hearing Date: August 19, 2022    Dept: 29

TENTATIVE

Plaintiff Salvador Nunez Escobedo’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 6, 2022.  This Motion to Set Aside the Dismissal was filed on February 14, 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 of their counsel. On January 6, 2022, 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. Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting that the hearing date was not scheduled on his calendar, and he did not appear at the trial.

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.  Pursuant to C.C.P. Section 473, subdivision (c)(1)(A) the Court imposes a penalty against counsel for Plaintiff in the amount of $500.00 payable to the  Court within 30 days of this order.

Moving party is ordered to give notice.