Judge: Steven A. Ellis, Case: 20STCV11342, Date: 2023-09-08 Tentative Ruling

Case Number: 20STCV11342    Hearing Date: September 8, 2023    Dept: 29

TENTATIVE

              The Court DENIES Plaintiff’s motion to set aside dismissal.

Legal Standard

“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 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 judgment, dismissal, order, or proceeding was taken. …” (Code Civ. Proc., § 473, subd. (b).)

A mistake is a basis for relief under Code of Civil Procedure section 473 when by reason of the mistake a defendant failed to make a timely response. Surprise occurs when a Defendant is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the Defendant has shown some reasonable excuse for the default. (Credit Managers Association of California v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.) Under Code of Civil Procedure section 473, the moving party bears the burden of demonstrating an excusable ground, such as fraud or mistake, justifying a court’s vacating a judgment. (Basinger v. Roger & Wells (1990) 220 Cal.App.3d 16, 23-24.)

Discussion

              The Court finds Plaintiff’s motion is not timely. “A party seeking relief under section 473(b) must file the motion within a reasonable time but not longer than six months after the judgment or dismissal has been entered. This six-month time limitation is jurisdictional; the court has no power to grant relief under section 473 once the time has lapsed.” (Austin v. Los Angeles Unified Sch. Dist. (2016) 244 Cal.App.4th 918, 928) [internal citations omitted].  The Court dismissed this action on March 30, 2022. (Order of Dismissal (3/30/2022).) Plaintiff did not file this motion until November 7, 2022, i.e., more than six months after the Court dismissed this action. (Code Civ. Proc., § 473, subd. (b).)

              Therefore, the Court DENIES the motion.