Judge: Steven A. Ellis, Case: 21STCV24381, Date: 2024-02-20 Tentative Ruling

Case Number: 21STCV24381    Hearing Date: February 20, 2024    Dept: 29

Motion to Set Aside Dismissal filed by Plaintiffs Shambria Williams

Tentative

The motion is granted.

Background

On July 1, 2021, Plaintiff Shambria Williams (“Plaintiff”) filed her complaint against Defendants Uber Technologies, Inc., Rasier, LLC, Rasier-CA, LLC, Gustafson Logistics, Inc., Jeffrey Allan Gustafson and Does 1 to 50 for Motor Vehicle Negligence and General Negligence causes of action arising from an automobile accident occurring on July 6, 2019.

On September 11, 2023, the case was dismissed when there was no appearance at a hearing on an OSC regarding Plaintiff’s failure to file a proof of service.

On January 22, 2024, 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

Plaintiff’s counsel contends dismissal occurred because his paralegal failed to calendar the haring date, and counsel failed to appear. (Salinas Decl., ¶ 6.) Counsel believes they will be able to timely locate and effect service of process on the three unserved defendants in this matter. (Id., ¶ 11.) Counsel opines that Plaintiff did not participate in or have knowledge of the nonappearance on September 11, 2023. (Id., ¶ 14.)

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 calendaring error. Further this motion was filed diligently.

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

Conclusion

Plaintiff’s motion to set aside the dismissal is GRANTED.

The Court sets the following in approximately 60 days: a Trial Setting Conference and an Order to Show Cause why the action should not be dismissed for failure to file a proof of service.

Plaintiff is ordered to give notice.