Judge: Steven A. Ellis, Case: 20STCV43568, Date: 2024-04-02 Tentative Ruling

Case Number: 20STCV43568    Hearing Date: April 2, 2024    Dept: 29

Plaintiffs’ Motion to Set Aside Dismissal

Tentative

The motion is granted.

Background

On November 12, 2020, Julia Jimenez Gomez, Julissa Genesis Jimenez, a minor by and through her Guardian Ad Litem Julia Jimenez Gomez, and Nazareth Yukari Jimenez, a minor by and through her Guardian Ad Litem Julia Jimenez Gomez (collectively “Plaintiffs”) filed a complaint against Lorenzo Francisco Robles, David Arzate, and Does 1 through 20 for the cause of action of motor vehicle negligence and general negligence causes of action arising from an automobile accident occurring on August 26, 2020.

On June 14, 2023, when Plaintiff failed to appear at a hearing on an OSC re dismissal for failure to file a proof of service, the case was dismissed.

On December 13, 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

Plaintiffs’ counsel Kelly Lawrence Casado states that the June 14, 2023 hearing was not properly calendared which led to counsel’s nonappearance. (Casado Decl., ¶2.) This motion was filed within 6 months of the dismissal.

No opposition has been filed.

The Court finds Plaintiff has established the dismissal occurred due to counsel’s mistake, inadvertence, surprise or neglect due to the miscalendaring of the June 14, 2023 hearing causing counsel’s nonappearance and leading to the Court’s order dismissing the case.

Therefore, Plaintiffs’ motion to set aside the dismissal is GRANTED.  

Conclusion

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

The Court SETS ASIDE the dismissal order entered on June 14, 2023.

The Court SETS an OSC re dismissal for failure to file proof of service in approximately 30 days.  Any response to the OSC must be by written declaration filed at least five calendar days before the hearing on the OSC.

Moving party is ordered to give notice.