Judge: Serena R. Murillo, Case: 20STCV33054, Date: 2022-11-01 Tentative Ruling

Case Number: 20STCV33054    Hearing Date: November 1, 2022    Dept: 29

Tsohsuan Joseph Wu v. Preeti Sharma

Motion to Set Aside Dismissal filed by Plaintiffs Tsohsuan Joseph Wu and Candace Wu

TENTATIVE

Plaintiffs Tsohsuan Joseph Wu and Candace Wu’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 February 25, 2022.  This Motion to Set Aside the Dismissal was filed on August 2, 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.)

Plaintiffs moves for relief on the ground that dismissal was entered due to the mistake, inadvertence, or neglect. On February 25, 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 Plaintiffs' counsel's office clerk failed to deliver the Court's order mailed by this Court including but not limited to a minute order dated February 14, 2022 to Plaintiffs' counsel on time. Therefore, Plaintiffs' counsel and Plaintiffs were not aware of the court order to appear for trial on February 25, 2022. In addition, Plaintiffs' counsel mistakenly believed that the case was dismissed without prejudice as Plaintiffs' request for dismissal was electronically submitted on January 25, 2022. However, the request for dismissal was rejected due to no accompanying petition for minor's compromise. (Hong Decl., ¶¶ 7-8.)

The Court finds that Plaintiffs’ counsel has sufficiently established mistake, inadvertence or neglect, and the dismissal will be set aside.  

Conclusion

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

Moving party is ordered to give notice.