Judge: Steven A. Ellis, Case: 21STCV04494, Date: 2023-06-30 Tentative Ruling

Case Number: 21STCV04494    Hearing Date: June 30, 2023    Dept: 29

TENTATIVE

Plaintiff’s motion to set aside the order of dismissal is GRANTED.  The court orders that the dismissal entered on August 4, 2022, is set aside. 

The Court sets an Order to Show Cause¿(1) why counsel D. Hess Panah should not be required to pay $250 to the State Bar Client Security Fund under Code of Civil Procedure section 473(c)(1)(B); and (2) why this action should not be dismissed for failure to file¿proof of service of the summons and complaint.

Discussion

The motion is timely filed under Code of Civil Procedure (“CCP”) section 473(b).  The action was dismissed on August 4, 2022.  This Motion to Set Aside the Dismissal was filed on November 28, 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 August 4, 2022, the Court dismissed the entire action without prejudice pursuant to CCP section 581(b)(3) when Plaintiff failed to appear for trial. Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting that the hearing date was never entered in the calendar. (Panah Decl., ls 8-9.)

Section 473(b) “does not require an explication of reasons as a prerequisite to mandatory relief.¿… [W]hat must be attested to is the mistake, inadvertence, surprise, or neglect—not the reasons for it.” (Martin Potts & Associates, Inc. v. Corsair, LLC¿(2016) 244 Cal.App.4th 432, 438.) “[The] purposes [of §473(b)]¿are advanced as long as mandatory relief is confined to situations in which the attorney, rather than the client, is the cause of the default, default judgment, or dismissal.” (Id.¿at 439.)¿ 

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

CCP section 473(c)(1) states, “(1) Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following: (A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.  (B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund. (C) Grant other relief as is appropriate.” 

As the Court is granting the request relief under CCP section 473, the Court is also setting an Order to Show Cause why counsel D. Hess Panah should not be required to pay $250 to the State Bar Client Security Fund under Code of Civil Procedure section 473(c)(1)(B).

Further, because Plaintiff has not filed a proof of service of summons and complaint, the court sets an Order to Show Cause¿why this action should not be dismissed for failure to file¿proof of service of the summons and complaint.

Conclusion

For the foregoing reasons, the motion to set aside the order of dismissal is GRANTED pursuant to CCP § 473(b).  The court orders that the dismissal entered on August 4, 2022, is set aside. 

The Court sets an Order to Show Cause regarding:¿(1) why counsel D. Hess Panah should not be required to pay the amount of $250 to the State Bar Client Security Fund under Code of Civil Procedure section 473(c)(1)(B); and (2) why this action should not be dismissed for failure to file¿proof of service of the summons and complaint.

The Court clerk will 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.