Judge: Steven A. Ellis, Case: 21STCV26656, Date: 2023-08-25 Tentative Ruling

Case Number: 21STCV26656    Hearing Date: August 25, 2023    Dept: 29

TENTATIVE

Plaintiff Shirley Ta’s Motion to Set Aside the Dismissal is GRANTED.

Legal Standard

Per Code of Civil Procedure section 473, subdivision (b), a court may “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.” In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.”  (Code Civ. Proc., § 473, subd. (b).) 

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Cal.App.4^th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]). “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.)

Discussion

Here, the Court entered an Order of Dismissal on January 17, 2023. Plaintiff’s counsel avers that he failed to appear for the Final Status Conference on January 3, 2023 due to his secretary’s failure to calendar it. (Declaration of Minh Nguyen-Duy at ¶ 5, 8.) Counsel states that he experienced some technical issues when attempting to appear for the January 17, 2023 Non-Jury Trial and Final Status Conference that caused him to miss the case being called. (Id. at ¶ 7, 9.)

Counsel demonstrates his failure to appear at the Final Status Conference on January 3, 2023 and missing the case being called at the Non-Jury Trial and Final Status Conference on January 17, 2023 was the result of inadvertence, mistake, and excusable neglect on his part. Counsel’s conduct and declaration submitted to the Court supports the request for relief from dismissal. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 618.)

The motion was filed within six months of the dismissal and so is timely. (Code Civ. Proc., § 473, subd. (b).)

Plaintiff’s motion is therefore granted.

Conclusion

The Court GRANTS Plaintiff’s Motion to Set Aside the Dismissal.

The Court, on its own motion, sets a trial setting conference for late November 2023.

Moving party is ordered to give notice.