Judge: Steven A. Ellis, Case: 21STCV39928, Date: 2024-01-22 Tentative Ruling

Case Number: 21STCV39928    Hearing Date: January 22, 2024    Dept: 29

Motion to Set Aside Dismissal filed by Plaintiffs

Tentative

The motion is GRANTED.

Background

On November 1, 2021, Plaintiffs Linda Allen and Rhonda Rumble filed a complaint against Defendants City of Los Angeles and Does 1 to 10 alleging the cause of action of Motor Vehicle Negligence arising out of a vehicle collision that occurred on October 30, 2019.

On March 24, 2023, the Clerk entered the default of City of Los Angeles.

On April 17, 2023, the Court vacated the trial date and set an OSC re Dismissal for Failure to File Request for Default Judgment on June 16, 2023.  When no default judgment papers were submitted by June 16, the Court continued the OSC to August 1, 2023.

When no default papers were submitted by August 1, and there was no appearance at the OSC, the Court dismissed the action without prejudice on August 1, 2023.

On August 21, 2023, Plaintiffs 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

Plaintiffs’ counsel states that the dismissal occurred as a result of his mistake, inadvertence, surprise or neglect, and, specifically, a calendaring error. (Tiomkin Decl., ¶¶ 3-5.)  Counsel also states that he spoke with the courtroom clerk on August 1, but the order for dismissal had already been signed.  (Id., ¶ 6.)

The Court finds Plaintiffs have established the dismissal occurred due to counsel’s mistake, inadvertence, surprise or neglect.

Therefore, Plaintiffs’ motion to set aside the dismissal is GRANTED.  

Conclusion

The Court GRANTS Plaintiffs’ motion to set aside the dismissal.

The Order of Dismissal filed on August 1, 2023, is hereby SET ASIDE.

Pursuant to Code of Civil Procedure section 473, subdivision (c)(1)(B), the Court ORDERS counsel of record Elliott N. Tiomkim to pay $250 to the State Bar Client Security Fund, and to file proof of payment with the Court by no later than February 29, 2024.

The Court sets an Order to Show Cause as to why this action should not be dismissed for failure to request a default judgment for March __, 2024, at 8:30 a.m., in Department 29 of the Spring Street Courthouse.

Moving parties are ordered to give notice.