Judge: Serena R. Murillo, Case: BC710037, Date: 2022-12-05 Tentative Ruling

Case Number: BC710037    Hearing Date: December 5, 2022    Dept: 29

TENTATIVE

Plaintiff Interinsurance Exchange of the Automobile Club’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 April 20, 2022.  This Motion to Set Aside the Dismissal was filed on May 18, 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. Plaintiff’s counsel provides a declaration signed under penalty of perjury stating that due to Plaintiff’s counsel’s inadvertence and mistake, counsel requested her appearance attorney to attend the OSC hearing on April 20, 2022. However, the attorney mistakenly believed the hearing was at 10:00 am instead of 8:30 am.  Counsel failed to confirm the time of the OSC with her appearance attorney. Counsel manages a high-volume debt collection and subrogation practice.  (Schwarz Decl., ¶¶ 6, 7, and 9.)

While Plaintiff’s counsel has established mistake for the most recent of many hearings, the procedural posture of this case precludes reinstatement of proceedings.  Defendants appear to be the same person, with names spelled differently.  Plaintiff has attempted to serve the defendants, including by publication, but never succeeded.  Even the most recent attempt was beyond the three year period for service of summons and complaint.  This case was filed on June 14, 2018.  Code of Civil Procedure section 583.210 requires serving the Summons an Complaint within three years after the complaint is filed.  That has not been done. 

Conclusion

Accordingly, Plaintiffs’ Motion to Set Aside the Dismissal is DENIED.

Moving party is ordered to give notice.