Judge Steven A. Ellis, Case Number: 20STCV37430, Date: 2023-06-30 Tentative Ruling

Judge: Steven A. Ellis, Case: 20STCV37430, Date: 2023-06-30 Tentative Ruling

Case Number: 20STCV37430 Hearing Date: June 30, 2023 Dept: 29

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED. The dismissal is set aside. The Court sets an OSC Re: Failure to File a Minor's Compromise in Compliance with Code of Civil Procedure section 372(a).

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 June 2, 2022. This Motion to Set Aside the Dismissal was filed on November 23, 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 Plaintiff’s counsel. On June 2, 2022, the Court dismissed the entire action without prejudice for lack of prosecution pursuant to CCP section 581(b)(4), when no party appeared for Order to Show Cause Re: why monetary sanctions should not be imposed due to Plaintiff’s failure to Appear at the Final Status Conference and Failure to File a Minor's Compromise in Compliance with Code of Civil Procedure section 372(a). Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting that his failure to appear at the FSC and trial and his failure to communicate with the Court was due to his mistaken belief a notice of settlement had been filed and that the matter would not be pending. (Tiffany Decl., ¶ 12.) He was not made aware of the OSC hearing, and he is not clear as to why it was not calendared by his office. (Id., ¶ 13.) Counsel states he fell in October of 2021 and sustained a concussion, and has lingering post-concussion effects to this day, which may be related to his inattentiveness and mistake in this case. (Id., ¶¶ 11, 14.)

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

Conclusion

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

The Court sets an OSC Re: Failure to File a Minor's Compromise in Compliance with Code of Civil Procedure section 372(a).

Moving party is ordered to give notice.

Note: once the Court has posted/issued a tentative ruling, the Court has the inherent authority to deny a party’s request to withdraw the motion and to adopt the tentative ruling as the order of the Court.