Judge: Steven A. Ellis, Case: 20STCV14201, Date: 2024-01-23 Tentative Ruling

Case Number: 20STCV14201    Hearing Date: January 23, 2024    Dept: 29

Motion to Set Aside Dismissal filed by Plaintiffs Jennifer Terlaje and Timothy Terlaje.

Tentative

The motion is GRANTED.

Background

On April 13, 2020, Plaintiffs Jennifer Terlaje and Timothy Terlaje (collectively “Plaintiffs”) filed their complaint against Rosario Guillen, Vicky Cortes, Guillen Family Child Care, and Does 1 through 100 for damages arising from the death of Maxwell Terlaje on April 26, 2018, who was under Defendants’ care at the time.

In May and June 2022, the Clerk entered the defaults of the named defendants.  On July 26, 2022, the Court set an OSC e dismissal for failure to enter default judgment for November 21, 2022.  The hearing was continued to February 3, 2023; April 10, 2023; and August 9, 2023.  When there was no appearance on August 9, 2023, the Court dismissed the complaint without prejudice.

On October 19, 2023, Plaintiffs filed this motion to set aside the dismissal.

No opposition has been filed.

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 accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken…” (Code Civ. Pro., §473, subd. (b).)

To qualify for relief under section 473, the moving party must act diligently in seeking relief and must submit affidavits or testimony demonstrating a reasonable cause for the default. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 234.)

“In a motion under section 473 the initial burden is on the moving party to prove excusable neglect by a “preponderance of the evidence. [Citations]”” (Kendall v. Barker (1988) 197 Cal.App.3d 619, 624.) “The moving party has a double burden: He must show a satisfactory excuse for his default, and he must show diligence in making the motion after discovery of the default.” (Id. at 625.)

Discussion

Plaintiff’s counsel states in his declaration that his failure to appear at the OSC hearing on August 9, 2023, and the resulting dismissal, was the result of a calendaring error and is this “solely attributable to the mistake, inadvertence, surprise or excusable neglect of plaintiff’s counsel.” (King Decl., ¶ 14.)

No opposition has been filed.

The Court finds Plaintiffs have established the dismissal occurred due to counsel’s mistake and inadvertence.  Accordingly, the Court GRANTS the motion to set aside the dismissal under Code of Civil Procedure section 473, subdivision (b).

Conclusion

The Court GRANTS Plaintiffs’ motion to set aside the dismissal.

The Order of Dismissal filed on August 9, 2023, is hereby SET ASIDE.

Pursuant to Code of Civil Procedure section 473, subdivision (c)(1)(B), the Court ORDERS counsel of record Justin H. King to pay $250 to the State Bar Client Security Fund, and to file proof of payment with the Court by no later than February 29, 2024.

The Court sets an Order to Show Cause as to why this action should not be dismissed for failure to have default judgment entered for March __, 2024, at 8:30 a.m., in Department 29 of the Spring Street Courthouse.

Plaintiffs are ordered to give notice.