Judge: Serena R. Murillo, Case: BC719041, Date: 2023-02-02 Tentative Ruling

Case Number: BC719041    Hearing Date: February 2, 2023    Dept: 29

TENTATIVE

Plaintiff Jose Ortiz Santiago’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

Here, the motion is timely filed.  The action was dismissed on March 1, 2022.  This Motion to Set Aside the Dismissal was filed on August 15, 2022, within six months of the dismissal.

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 due to his counsel’s mistake, inadvertence, surprise or neglect.  On March 1, 2022, the entire action was dismissed without prejudice for failure to prosecute pursuant to CCP section 583.420(a)(2)(a), and failure to appear pursuant to California Rules of Court, Rule 3.110(h), when Plaintiff did not appear for Order to Show Cause Re: Dismissal for Failure to File Proof of Service as to the Cross-Complaint; Order to Show Cause Re: Entry of Default Judgment. Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting that the nonappearance at the OSC hearing was due to counsel being ill that morning and forgetting about the hearing. (Golde Decl., ¶ 5.)

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

Conclusion

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

Plaintiff is ordered to give notice.