Judge: Serena R. Murillo, Case: BC701802, Date: 2023-03-22 Tentative Ruling

Case Number: BC701802    Hearing Date: March 22, 2023    Dept: 29

TENTATIVE

Plaintiff’s Untimely Motion to Set Aside the Dismissal is DENIED.

Legal Standard

Code of Civil Procedure § 473(b) provides for mandatory and discretionary relief from dismissal.  The discretionary relief prong states: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a … dismissal… taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief … shall be made within a reasonable time, in no case exceeding six months, after the … dismissal … was taken.” (CCP section 473(b).) The mandatory prong states: “The court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any … resulting … dismissal entered against his or her client….” (Id.)

Discussion

Plaintiff moves to set aside the dismissal under CCP section 473(b) due to attorney mistake, inadvertence, or neglect. Plaintiff argues the initial request for relief was via a Declaration by Shabnam Sarani, Esq. filed with the Court on September 14, 2021, explaining that Plaintiff’s Counsel missed the hearing due to an inadvertent calendaring mistake. Plaintiff received no response from the Court to this Declaration. A second Declaration by Shabnam Sarani, Esq. was filed with the Court on November 1, 2022, again explaining the calendaring mistake, and apologizing to the Court for the inadvertent error. Again, no response from the Court was received to the second Declaration.

However, the motion is not timely filed under CCP section 473.  The action was dismissed on September 14, 2021.  This Motion to Set Aside the Dismissal was filed on January 9, 2023, well past six months after the Court dismissed the complaint. The Court does not have authority under CCP 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.)  

Plaintiff argues she substantially complied with the six-month deadline to request relief by filing a signed Declaration with the Court attesting to the error and apologizing to the Court the very same day as the dismissal was notice. While Plaintiff’s counsel filed a declaration attesting to attorney fault, she was required to file an application for relief under CCP section 473(b). Plaintiff has cited to no authority for her proposition that the six-month time limit under CCP section 473(b) can be excused when there is substantial compliance, other than arguing generally that: “Where a reasonable attempt has been made to comply with a statute in good faith,...the doctrine of substantial compliance holds that the statute may be deemed satisfied.” (People v. Green (2004) 125 Cal.App.4th 360, 371.) However, in light of the court’s ruling in Arambula, that the six-month time limit is jurisdictional and must be strictly enforced (Arambula, supra, 128 Cal.App.4^th at 345), and without any other authority stating substantial compliance may suffice, the Court must deny the motion as untimely.

Conclusion

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

Moving party is ordered to give notice.