Judge: Steven A. Ellis, Case: 20STCV26985, Date: 2023-08-03 Tentative Ruling

Case Number: 20STCV26985    Hearing Date: August 3, 2023    Dept: 29

TENTATIVE

Plaintiff’s Motion is GRANTED.

Background 

On July 17, 2020, Plaintiff Rosa Aranda Sanchez (“Plaintiff”) filed a complaint against Defendant Eric Torrance (“Defendant”) for motor vehicle negligence and general negligence.

On November 22, 2022, the Court ordered the dismissal of the entire action without prejudice pursuant to Code of Civil Procedure section 581b(4).  (Minute Order 11/22/22.) 

On December 12, 2022,  Plaintiff filed a motion to vacate the order of dismissal entered on November 22, 2022.  The motion is made pursuant to Code of Civil Procedure section 473 subdivision (b).

Legal Standard 

Pursuant to Code of Civil Procedure section 473 subdivision (b), both discretionary and mandatory relief is available to parties when a case is dismissed.  Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  (Code of Civ. Proc. § 473, subd. (b).)  Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”  (Ibid.)  Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.  (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) 

“‘[W]hen relief under section 473¿is¿available, there is strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.) 

Discussion 

Plaintiff requests relief from the Order of Dismissal of the action entered on November 22, 2022. 

On November 22, 2022, at the Trial Setting Conference, the Court noted that there is no appearance by or for plaintiff, nor communication with the Court as to why there are no appearances.  (Minute Order 11/22/22.)  The Court dismissed the Complaint filed on July 17, 2022 without prejudice.  (Ibid.)

On December 22, 2022, Plaintiff filed the instant Motion seeking to set aside dismissal on the ground that dismissal was entered due to mistake by Plaintiff’s counsel. (Mot. pp. 3-4.)  Specifically, Plaintiff and Plaintiff’s counsel failed to appear at the Trial Setting Conference because of the failure of counsel to ensure that the matter was properly calendared.  (Sklar Decl. ¶ 8.) 

Plaintiff’s Motion is timely and accompanied with an attorney’s affidavit of fault. 

Accordingly, Plaintiff’s Motion is GRANTED. 

Conclusion 

For the foregoing reasons, 

Plaintiff Rosa Aranda Sanchez’s Motion to Vacate the Order of Dismissal is GRANTED. 

Dismissal entered on November 22, 2022, is hereby vacated. 

The Court, on its own motion, sets a trial setting conference for November __, 2023 at _____ in Dept. 29.

Moving party is to give notice.