Judge: Steven A. Ellis, Case: 21STCV00411, Date: 2023-08-21 Tentative Ruling

Case Number: 21STCV00411    Hearing Date: August 21, 2023    Dept: 29

TENTATIVE

Motion to set aside is GRANTED.

Background 

On January 6, 2021, Plaintiff Jinsam Lee filed a complaint against Defendant Maria Barba and Manuel B. Ibarra for motor vehicle and general negligence arising from an automobile accident on January 7, 2019. 

On July 6, 2022, the date of trial, the Court dismissed the entire action without prejudice.  The Court stated, “[t]here is no appearance by or for plaintiff, nor communication with the Court as to why there are no appearances by Counsel or Parties this date.”  (Minute Order 07/06/22.)  

On January 5, 2023, Plaintiff filed a motion to set aside/vacate dismissal.  No opposition has been filed. 

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 

The motion is timely filed under Code of Civil Procedure section 473 subdivision (b).  The action was dismissed on July 6, 2022.¿ This motion to Set Aside the Dismissal was filed on January 5, 2023, within six months after dismissal was entered.  Also, this motion is accompanied with an attorney’s sworn affidavit attesting to his mistake, inadvertence, surprise, and excusable neglect.  Specifically, Plaintiffs’ counsel, N. Joe Inumerable, (“Counsel”) did not attend the hearing or make arrangements because he suffered the sudden death of his brother on June 16, 2022.  (Declaration of N. Joe Inumerable, ¶ 3.)  Counsel flew to the Philippines to attend and organize funeral arrangements and ended up staying longer to attend to his brother’s family including two minor children, his own personal matters, and his parents.  (Ibid.)  Counsel had lost track that this matter was set for trial, so he was unable to make the proper arrangement to inform the court and seek more time.  (Ibid.)  Further, Counsel had to deal with his brother’s caseload which he inherited and tried to address.  (Inumerable Decl., ¶ 4.)  Counsel’s failure to attend the hearing was not intentional.  (Inumerable Decl., ¶ 6.) 

Because Plaintiffs’ motion is timely and accompanied with an attorney’s affidavit sufficiently establishing mistake, inadvertence, surprise or neglect, the motion is GRANTED. 

Conclusion 

For the foregoing reasons, 

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

Dismissal entered on July 6, 2022, is hereby vacated. 

Plaintiff is ORDERED to serve the named defendants within 60 days.  The matter is set for a Trial Setting Conference in approximately 90 days.

Moving party is to give notice.