Judge: Serena R. Murillo, Case: BC716682, Date: 2022-08-25 Tentative Ruling

Case Number: BC716682    Hearing Date: August 25, 2022    Dept: 29

TENTATIVE

Plaintiff Jason Kirby’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 March 15, 2022.  This Motion to Set Aside the Dismissal was filed on March 30, 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 relief on the ground that dismissal was entered due to the mistake, inadvertence, or neglect of their counsel. On March 15, 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 an Order to Show Cause Re: Dismissal of Defendant The Hertz Corporation; Status Conference Re: Bankruptcy Filed by Defendant The Hertz Corporation - e/s/as Hertz Corp. Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting that the hearing date was not scheduled on his calendar, and he failed to appear as a result. (Shemtoub Decl., ¶ 4.)

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).) As Defendant does not dispute the accuracy of Plaintiff’s counsel mis-calendaring the hearing date, the Court finds that Plaintiff’s counsel has sufficiently established mistake, and the dismissal will be set aside.  

Conclusion

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

Moving party is ordered to give notice.