Judge Serena R. Murillo, Case 21STCV01030 2023-02-24 Tentative Ruling

Judge: Serena R. Murillo, Case: 21STCV01030, Date: 2023-02-24 Tentative Ruling

Case Number: 21STCV01030 Hearing Date: February 24, 2023 Dept: 29

TENTATIVE

Plaintiffs Tania Parker, Josiah Parker, Leslie Pollack’s Motion to Set Aside/Vacate Judgment/Order for Sanctions for Plaintiff’s Failure to Appear on July 11, 2022 and Failure to File Minor’s Compromise Per Code of Civil Procedure Section 473(b) is TAKEN OFF CALENDAR.

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

Pursuant to Code of Civil Section 473(b), Plaintiffs seek an order setting aside the Order of this Court dated July 11, 2022, to pay sanctions of $500.00 for failure to appear at the July 11, 2022 hearing and for failing to file a Minor’s Compromise.

However, the Court does not have jurisdiction to hear this motion. Counsel neglects to mention that at the July 11, 2022 non-jury trial in which he failed to appear, the Court dismissed the case pursuant to Code of Civil Procedure Section 581(b)(3). As counsel has not moved to set aside the dismissal, and only moves to set aside the order for sanctions, the Court cannot grant this requested relief. Moreover, counsel may not now move to set aside the dismissal as the case was dismissed in July of 2022, i.e., more than six months ago. The Court does not have authority under Code of Civil Procedure Section 473(b) to excuse Plaintiff’s noncompliance with the six-month time limit. (See Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4^th 333, 345.)

As such, because the Court has no jurisdiction, the motion to set aside the order for sanctions is TAKEN OFF CALENDAR.

Moving party is ordered to give notice.