Judge: Steven A. Ellis, Case: 21STCV31813, Date: 2024-04-26 Tentative Ruling

Case Number: 21STCV31813    Hearing Date: April 26, 2024    Dept: 29

Motion to Set Aside Dismissal filed by Plaintiff Andrew Vargas.

Tentative

The motion is granted.

Background

On August 27, 2021, Andrew Vargas (“Plaintiff”) filed a complaint against Dennis Keith Mitchell (“Defendant”) for negligence and negligence per se causes of action arising out of an automobile accident occurring on August 30, 2019.

On February 24, 2023, Plaintiff did not appear for trial, and the case was dismissed. On June 8, 2023, 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 Babak Doustkam states that he took over the representation of Plaintiff in this case, as well as a number of other clients in other cases, after Plaintiff’s former counsel, Neil Stein, passed away.  (Doustkam Decl., ¶ 2.)  During this “hectic period,” new counsel’s firm misfiled this case as a closed filed, which lead to the complaint not being served on Defendant or litigated. (Id., ¶ 3.) Plaintiff’s counsel contends that setting aside the dismissal will not prejudice defendant, as Plaintiff has injuries which he is still treating and a worker’s compensation claim is still pending.

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 misfiling this case and missing the February 24, 2023 trial date causing counsel’s nonappearance and subsequent dismissal.

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 an OSC re Monetary Sanctions in an Amount of up to $500 Should Not Be Imposed Against Plaintiff and/or Plaintiff’s Counsel for Failure to File a Proof of Service in approximately 75 days.  Any response to the OSC must be in writing and filed at least five calendar days before the hearing on the OSC.

The Court also sets a Trial Setting Conference at the same time.

Moving party to give notice.