Judge: Steven A. Ellis, Case: 21STCV37805, Date: 2023-10-26 Tentative Ruling

Case Number: 21STCV37805    Hearing Date: October 26, 2023    Dept: 29

Tentative

The motion is granted.

Counsel is ordered to pay $250 to State Bar Client Security Fund.

Background 

On October 13, 2021, Plaintiff Efrain S Lazaro Hernandez filed an action against Defendant Beatriz De Barragan, alleging motor vehicle negligence.

On, April 23, 2023, the Court dismissed the case without prejudice as there were no appearances or contact by either side.

On August 21, 2023, Plaintiff filed the instant motion to set aside and vacate order to dismiss and for relief pursuant to Code of Civil Procedure section 473. No opposition has been filed.

Legal Standard

Code of Civil Procedure section 473(b) provides, in pertinent part, as follows:

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… Notwithstanding any other requirements of this section, the court shall, 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, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.

 (Code Civ. Proc. § 473(b).)

Discussion

Plaintiff seeks to set aside dismissal of the Complaint on the ground that dismissal was entered due to Plaintiff’s counsel’s “mistake, inadvertence, surprise and excusable neglect.”  (Mot. p. 5; Nazaretian Decl. ¶¶ 3-4.) Specifically, Plaintiff’s counsel inadvertently failed to calendar the Status Conference rescheduled by the Court and failed to make an appearance.  (Nazaretian Decl. ¶¶ 3-4.) Plaintiff’s counsel has submitted a sworn declaration apologizing for the mistake and requesting the Court to vacate the dismissal. (Ibid.)

The Court finds that Plaintiff’s Motion is timely. Plaintiff’s counsel has shown that Plaintiff’s failure to appear at the April 12, 2023 hearing was due to counsel’s mistake. For this reason, the Court GRANTS Plaintiff’s Motion.

Pursuant to Code of Civil Procedure section 473, subdivision (c)(1)(B), the Court also ORDERS attorney Leon Nazaretian to pay $250 to the State Bar Client Security Fund. 

Conclusion

For the foregoing reasons, Plaintiff Efrain Lazaro Hernandez’s Motion to Set Aside/Vacate Dismissal is GRANTED. Dismissal entered on April 12, 2023, is hereby VACATED.

Attorney Leon Nazaretian is ORDERED to pay $250 to the State Bar Client Security Fund, and to submit to the Court proof of payment, within 45 days of notice of this order.

The Court sets an OSC re proof of payment in approximately 60 days.

Moving party is to give notice.