Judge: Serena R. Murillo, Case: 20STCV44830, Date: 2023-03-13 Tentative Ruling

Case Number: 20STCV44830    Hearing Date: March 13, 2023    Dept: 29

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED.  Matter is re-set for OSC Re Sanctions in the amount of $750 for failure to appear on August 15, 2022 [for TSC and OSC re: Sanctions for failure to file proof of service of summons and complaint] and OSC re dismissal for  failure to file proof of service of the summons and complaint on April 20, 2023 at 8:30 a.m.; OSC re: Dismissal for failure to file proof of service is scheduled for November 20, 2022 at 8:30 a.m.

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 August 15, 2022.  This Motion to Set Aside the Dismissal was filed on February 14, 2023, 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 August 15, 2022, the entire action was dismissed without prejudice when Plaintiff did not appear for Order to Show Cause Re: why monetary sanctions should not be imposed due to Plaintiff’s failure to file proof of service of the summons and complaint; Order to Show Cause Re: Dismissal for Failure to file proof of service; Trial Setting Conference. Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting that the nonappearance at the OSC hearing was the result of his calendaring error. (Ghahreman Decl., ls. 22-23.)

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.  Matter is re-set for OSC Re Sanctions in the amount of $750 for failure to appear on August 15, 2022 [for TSC and OSC re: Sanctions for failure to file proof of service of summons and complaint] and OSC re dismissal for  failure to file proof of service of the summons and complaint on April 20, 2023 at 8:30 a.m.; OSC re: Dismissal for failure to file proof of service is scheduled for November 20, 2022 at 8:30 a.m.