Judge: Steven A. Ellis, Case: 21STCV16634, Date: 2024-02-09 Tentative Ruling
Case Number: 21STCV16634 Hearing Date: February 9, 2024 Dept: 29
Motion to Set Aside Dismissal filed by Plaintiffs Michelle Alexis Cruz, Aaron Michael Fuentes, and Dominic Liam Fuentes.
Tentative
The motion is granted.
Background
On May 3, 2021, Plaintiffs Michelle Alexis Cruz, Aaron Michel Fuentes, and Dominic Liam Fuentes (collectively “Plaintiffs”) filed a complaint against Ruth V. Rakayla and Does 1 through 100 for a negligence cause of action.
On May 9, 2023, the case was set for an OSC re dismissal for failure to file proof of service of summons and complaint. Plaintiffs did not appear, and the Court dismissed the action without prejudice.
On November 9, 2023, Plaintiff 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 contends dismissal occurred because his office marked the case as settled/closed in the computer program used to manage cases, and as such, no alerts were made for the hearing which counsel missed. (Kohanarieh Decl., ¶P 3, 4.)
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 his poor health at the time of the dismissal. Further this motion was filed diligently, six months after the dismissal.
Therefore, Plaintiffs’ motion to set aside the dismissal is GRANTED.
The Court SETS ASIDE the dismissal entered on May 9, 2023.
Order to Show Cause Re: Dismissal for Failure to File Proof of Service or in the alternative a
Trial Setting Conference is scheduled for 04/12/2024 at 08:30 AM in Department 29 at Spring
Street Courthouse.
Order to Show Cause Re: Proof of Payment of $250 by Counsel Ramin Ray Kohanarieh to the
State Bar Client Security Fund is scheduled for 04/12/2024 at 08:30 AM in Department 29 at
Spring Street Courthouse.
Plaintiffs are ordered to give notice.