Judge: Steven A. Ellis, Case: 21STCV24895, Date: 2024-06-10 Tentative Ruling

Case Number: 21STCV24895    Hearing Date: June 10, 2024    Dept: 29

Motion to Set Aside Dismissal filed by Plaintiff Yuanbo Tang.

Tentative

The motion is granted.

Background

On July 7, 2021, Yuanbo Tang (“Plaintiff”) filed a complaint for negligence against Yu Chun Wong (“Defendant”) and Does 1 through 75 based on a motor vehicle accident occurring on July 16, 2019.

On January 12, 2023, Plaintiff filed a proof of service of the summons and complaint on Defendant.  Defendant did not answer or otherwise appear.  On July 7, 2023, the Court rejected Plaintiff’s request for entry of default, as there was no proof of service of a statement of damages.

Also on July 7, 2023, the Court (among other things) set an OSC re Dismissal for Failure to Enter Default for October 20, 2023.

On October 20, 2023, Plaintiff did not appear.  The Court dismissed the action without prejudice.

On April 18, 2024, Plaintiff filed this motion to set aside the dismissal. No opposition has been filed.

Legal Standard

Code of Civil Procedure § 473(b) provides for mandatory and discretionary relief from dismissal. “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 through his or her mistake, inadvertence, surprise, or excusable neglect.” Code of Civil Procedure § 473(b). Where such an application for discretionary relief is made, the motion shall be accompanied by a copy of the answer or pleading proposed to be filed, or the application will not be granted. (Id.) The court must grant relief from dismissal where the application is accompanied by an attorney affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. (Id.) In either case, the application must be made within a reasonable time, and in no case exceeding six months after the judgment. (Id.)

Discussion

Plaintiff requests the Court set aside the dismissal of his complaint on October 20, 2023.

Plaintiff’s counsel states that he failed to appear on October 20, 2023, due to a calendaring error in his office, and his own failure to monitor his office staff.  (Herrera Decl., ¶¶ 7 – 9.)

The Court finds that Plaintiff has established that the dismissal was through excusable neglect.  As such, the Court GRANTS Plaintiff’s motion to set aside the dismissal.

Conclusion

The Court GRANTS Plaintiff’s motion to set aside dismissal.

The Court SETS ASIDE the dismissal filed on October 20, 2023.

The Court SETS an OSC re Dismissal for Failure to Obtain Entry of Default or, in the alternative, a Trial Setting Conference in approximately 60 days.

Moving party to give notice.