Judge: Serena R. Murillo, Case: 20STCV37213, Date: 2023-02-28 Tentative Ruling

Case Number: 20STCV37213    Hearing Date: February 28, 2023    Dept: 29

TENTATIVE

Plaintiff Ashley Morris’ 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

Here, the motion is timely filed.  The action was dismissed on March 29, 2022.  This Motion to Set Aside the Dismissal was filed on September 26, 2022, within six months of the dismissal.

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 Plaintiff’s counsel. On March 29, 2022, the entire action was dismissed without prejudice pursuant to CCP 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 Final Status Conference and trial dates were not calendared on his system and list of active cases. (Wright Decl., ¶ 7.) In or around June or July of 2020, counsel’s office in Pasadena was fully closed due to the Covid pandemic and all work went remote. By that time, his staff was down to one person, a secretary, and himself. From March until June or July of 2020, counsel reduced in-person time at the office to about 20%. He had a cardiac ablation in February of 2020 for atrial fibrillation and was at heightened risk for adverse outcome from Covid. In February of this year, 2022, counsel closed his Pasadena office. The transition to remote working was a difficult one. Counsel had always worked full time in an office with a staff. His technical proficiency and office management skills suffered in the remote working space. (Id., ¶ ¶ 4-6.)

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

Conclusion

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED.