Judge: Steven A. Ellis, Case: 21STCV22987, Date: 2024-06-04 Tentative Ruling

Case Number: 21STCV22987    Hearing Date: June 4, 2024    Dept: 29

Plaintiffs’ Motion to Set Aside Dismissal

Tentative

The motion is denied without prejudice.

Background

On June 21, 2021 Plaintiffs Severino Martinez, Luisa Martinez, Jesus Martinez, by and through his Guardian Ad Litem Severino Martinez, Luisa Martinez, by and through her Guardian Ad Litem, Severino Martinez, and David Martinez, by and through his Guardian Ad Liem, Severino Martinez (collectively “Plaintiffs”) filed a complaint against Jemahlton Thomas and Lawanda Broussard (collectively “Defendants”) for negligence, negligence per se, negligence-vicarious liability, and negligence causes of action arising out of an automobile accident occurring on July 13, 2019.

Defendants filed an answer on December 9, 2022.

Plaintiffs filed a notice of settlement on June 20, 2023.  The Court set an OSC re dismissal for October 3, 2023, which was then continued to December 18, 2023, and then to January 22, 2024.

On January 22, 2024, Plaintiffs did not appear.  Plaintiffs’ complaint was dismissed.

On May 13, 2024, 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 fail to include proof of service of this motion showing service on Defendants.

For that reason, the motion is denied without prejudice.

Conclusion

The Court DENIES Plaintiffs’ motion to set aside the dismissal without prejudice for failure to serve Defendants.

Moving party to give notice.