Judge: Serena R. Murillo, Case: BC716655, Date: 2022-11-01 Tentative Ruling

Case Number: BC716655    Hearing Date: November 1, 2022    Dept: 29

Irma N. Contreras v. Noe Francisco Martinez et al.

Motion to Set Aside Dismissal filed by Plaintiff Irma N. Contreras

TENTATIVE

Plaintiff Irma Contreras’ Motion to Set Aside the Dismissal is GRANTED. Defendant’s request for sanctions is GRANTED. Plaintiff’s counsel is ordered to pay Defendant $1,000 in monetary sanctions within 30 days.

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.) 

“The court shall, whenever relief is granted based on attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”  (Code Civ. Proc. § 473, subd. (b).) 

Discussion

The motion is timely filed under C.C.P. § 473(b).  The action was dismissed on January 21, 2022.  Plaintiff filed the application to set aside the dismissal on February 3, 2022, within six months after dismissal was entered.

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 mandatory relief on the ground that dismissal was entered due to the mistake, inadvertence, or neglect of their counsel. On January 21, 2022, the Court dismissed the entire action without prejudice for lack of prosecution pursuant to C.C.P. Section 581(b)(3) when Plaintiff did not appear for trial. Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting that counsel’s clerk mis-calendared the Final Status Conference and trial dates and thus, Plaintiff missed the hearings. (Williams Decl., ¶ 2.)

Defendant argues in opposition that this does not constitute excusable neglect. However, because Plaintiff moves for mandatory relief, the neglect need not be excusable. 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.  (CCP section 473(b).) 

Defendant also argues the complaint is barred by the statute of limitations. Whether or not Plaintiff’s complaint is barred by the statute of limitations is not an issue to be entertained on consideration of plaintiff’s Motion to Set Aside or Vacate Dismissal, pursuant to Code of Civil Procedure § 473(b).  Rather, the only pertinent question is whether the “judgment, dismissal, order, or other proceeding taken . . . [was caused by counsel’s or the party’s] mistake, inadvertence, surprise, or excusable neglect.”  (CCP § 473(b).)

However, Plaintiff’s counsel is ordered to pay monetary sanctions to Defendant in the amount of $1,000 under CCP section 473(b).

Conclusion

Accordingly, Plaintiff’s Motion to Set Aside the Dismissal is GRANTED. Defendant’s request for sanctions is GRANTED. Plaintiff’s counsel is ordered to pay Defendant $1,000 in monetary sanctions within 30 days.

Moving party is ordered to give notice.