Judge: Steven A. Ellis, Case: 21STCV28220, Date: 2025-01-07 Tentative Ruling
Case Number: 21STCV28220 Hearing Date: January 7, 2025 Dept: 29
Matters v. Villalobos
21STCV28220
Plaintiff’s Motion to Set Aside Dismissal
Tentative
The motion is granted.
Background
On August 2, 2021, James Matters (“Plaintiff”) filed a
complaint against Bertha Villalobos, Steven Villalobos Cabral, and Does 1
through 50 for motor vehicle negligence arising out of an alleged accident occurring
on February 5, 2019.
No defendant has answered or otherwise appeared.
Plaintiff failed to appear at the Final Status Conference
or Trial. On January 30, 2023, the
action was dismissed without prejudice.
Plaintiff filed a timely motion to set aside the
dismissal.
On March 5, 2024, the Court granted the motion and set a
Trial Setting Conference and an Order to Show Cause re Dismissal for Failure to
File Proof of Service on May 6, 2024.
The TSC and OSC were continued to July 15, 2024. On July 15, 2024, the TSC was taken off
calendar and the OSC was continued to September 13, 2024.
Plaintiff failed to appear on September 13, 2024. The action was dismissed without prejudice.
On December 4,
2024, Plaintiff filed this motion to set aside the dismissal.
No opposition
has been filed.
Legal Standard
Code of Civil Procedure section 473, subdivision (b) provides
for both discretionary and mandatory relief from dismissal.
As to discretionary relief, the statute states: “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,
subd. (b).) Where such an application for discretionary relief is made, the
motion must be accompanied by a copy of the answer or pleading proposed to be
filed; “otherwise the application shall not be granted.” (Ibid.) The application for relief must be made within
a reasonable time, and in no case exceeding six months after the judgment. (Ibid.)
The statute also provides for mandatory relief from dismissal,
default, or default judgment:
“whenever an application for relief is made no more than six
months after entry of judgment, is in proper form, and is accompanied by an
attorney’s sworn affidavit attesting to his or her 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.”
(Ibid.)
A request for discretionary relief under section 473,
subdivision (b), must be made (subject to certain exceptions) “within a
reasonable time, in no case exceeding six months.” (Ibid.) A request for mandatory relief must be made
within six months. (Ibid.)
Discussion
Plaintiff requests mandatory relief under Code of Civil
Procedure section 473, subdivision (b).
In support of the motion, Plaintiff submits a declaration of counsel
stating that his failure to appear on September 13, 2024, was due to severe medical
issues. (Bowman Decl., ¶¶ 3-5.) Counsel reports that he has recovered and is
able to resume his representation of Plaintiff.
(Id., ¶ 8.)
For good cause shown, the motion is granted.
The Court further notes the following.
First, the Court notes that counsel submits, attached to
his declaration, non-conformed requests for entry of default dated on September
6, 2024. Those requests do not appear in
the file.
Second, the Court notes that Plaintiff filed, on December
4, 2024, proofs of service indicating that service was effected on August 6,
2024.
Accordingly, it appears to the Court that Plaintiff is in
violation of California Rule of Court, rule 3.110(g).
Conclusion
The Court GRANTS Plaintiff’s motion to set aside the dismissal
dated September 13, 2024.
The Court SETS ASIDE the dismissal entered on September
13, 2024.
The Court SETS an Order to Show Cause Why Monetary Sanctions
of up to $500 Should Not be Imposed on Plaintiff and/or Plaintiff’s Counsel Stanley
D. Bowman for Failure to Comply with California Rules of Court, Rule 3.110(g).
The hearing on the OSC is set in approximately 45
days. Any response to the OSC must be in
writing and must be filed at least 5 days prior to the hearing.
Moving Party is to give notice to any party
who appears or who has appeared.