Judge: Steven A. Ellis, Case: 21STCV37983, Date: 2024-08-14 Tentative Ruling
Case Number: 21STCV37983 Hearing Date: August 14, 2024 Dept: 29
Torres v. Oden
21STCV37983
Plaintiffs’ Motion to Set Aside Dismissal
Tentative
The hearing on the motion is continued.
Background
On October 14,
2021, Joel Maldonado Torres and Nicole Maldonado
(collectively “Plaintiffs”) filed a complaint against Miriam Violeta Oden, Miriam
Estrada Garcia, and Does 1 through 50 for motor vehicle negligence and general
negligence arising out of an accident occurring on October 19, 2019 at the
intersection of Telegraph Rd and Stokes Avenue in Downey.
No defendant has appeared.
On January 29,
2024, no one appeared at an Order to Show Cause regarding Dismissal. Accordingly, Plaintiffs’ complaint was
dismissed without prejudice.
On July 11, 2024,
Plaintiffs filed this motion to set aside the dismissal. No opposition has been
filed.
Legal Standard
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
Plaintiffs request the Court set aside the dismissal of its
complaint on January 29, 2024.
Under Code of Civil Procedure section 473, subdivision (b),
Plaintiffs’ motion is timely.
Plaintiffs’ counsel appears to have attached the wrong declaration
to this motion, as it states he is counsel for Plaintiff Charlene Schuh, who is
not one of the Plaintiffs in this matter. (Shagramanov Decl., ¶ 1.)
Accordingly, the hearing on this motion is CONTINUED to
allow Plaintiffs’ counsel to file the correct declaration in relation to this
case.
Conclusion
The Court CONTINUES Plaintiffs’ motion to set aside the
dismissal for approximately 21 days.
The Court ORDERS Counsel to file any corrected
declaration in support of the requested relief at least five court days prior
to the hearing.
Moving party is ordered to give notice to any parties who
have appeared.