Judge: Steven A. Ellis, Case: 21STCV35122, Date: 2024-08-20 Tentative Ruling

Case Number: 21STCV35122    Hearing Date: August 20, 2024    Dept: 29

Velasco v. Nuestra Senora de Guadalupe, Inc.
21STCV35122
Plaintiff’s Motion to Set Aside Dismissal

Tentative

The motion is granted.

Background

On September 22, 2021 Plaintiff Marta Velasco (“Plaintiff”) filed a complaint against Nuestra Senora De Guadalupe, Inc. (“Defendant”) and Does 1 to 30 for premises liability and general negligence arising out of a fall on September 26, 2019.

Default was entered against Defendant on June 5, 2023.

On November 29, 2023, Plaintiff amended the complaint to correct the name of Defendant.  The correct name is Our Lady of Guadalupe Church.

On February 13, 2024, Plaintiff did not appear at an OSC re Dismissal.  Plaintiff’s complaint was dismissed without prejudice.

On June 11, 2024, Plaintiff filed this motion to set aside the dismissal. No opposition has been filed. This motion was initially scheduled for July 24 and continued to August 20.

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.)

Discussion

Plaintiff seeks to have the dismissal of her complaint set aside.

Plaintiff’s counsel Dean Hakkak states that he failed to appear at the OSC hearing on February 13, 2024, because of an inadvertent scheduling mistake.  (Hakkak Decl., ¶¶ 5-6.)

The Court finds that the dismissal was entered as a result of counsel’s mistake, inadvertence, surprise, or neglect.  Accordingly, the motion is granted.

Pursuant to Code of Civil Procedure section 473, subdivision (c)(1)(B), the Court ORDERS counsel of record Dean Hakkak to pay $150 to the State Bar Client Security Fund, and to file proof of payment with the Court by no later than September 20, 2024.

Conclusion

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

The Court SETS ASIDE the dismissal order entered on February 13, 2024.

The Court SETS a hearing in approximately 60 days on an Order to Show Cause re Dismissal for failure to obtain entry of default against the Defendant or, in the alternative, a Trial Setting Conference.

The Court SETS a hearing in approximately 60 days on an Order to Show Cause re proof of payment by counsel of record Dean Hakkak of the amount of $150 to the State Bar Client Security Fund.

Moving party to give notice.