Judge: Serena R. Murillo, Case: BC694599, Date: 2023-01-17 Tentative Ruling

Case Number: BC694599    Hearing Date: January 17, 2023    Dept: 29

TENTATIVE

Plaintiff Adam Greenfield’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 May 20, 2022.  This Motion to Set Aside the Dismissal was filed on June 23, 2022, within six months after dismissal was entered, and within a reasonable time.

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 counsel. On May 20, 2022, the Court dismissed the entire action without prejudice pursuant to CCP Section 581(b)(4), and California Rules of Court, Rule 3.110(g)(h), when Plaintiff’s counsel did not appear for an Order to Show Cause Re: Dismissal for Failure to Enter Default Judgment; Order to show Cause Re: why monetary sanctions should not be imposed due to Plaintiff’s failure to file a default judgment. Plaintiff’s counsel provides a declaration signed under penalty of perjury stating that he mistakenly forgot to timely call in to the Court to attend the hearing on May 20, 2022. By the time he called LACourtConnect, he was unable to be connected to the courtroom. (Child Decl., ¶ 2.)

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

Conclusion

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

Moving party is ordered to give notice.