Judge: Steven A. Ellis, Case: 21STCV44737, Date: 2024-04-03 Tentative Ruling

Case Number: 21STCV44737    Hearing Date: April 3, 2024    Dept: 29

Motion to Set Aside Dismissal filed by Plaintiff Rosalinda M. Lopez.

Tentative

The motion is granted.

Background

On December 6, 2021, Rosalinda M. Lopez (“Plaintiff”) filed a complaint against Manual Gonzalez (“Defendant”) asserting motor vehicle negligence and general negligence causes of action arising out of an automobile accident occurring on December 31, 2019.

On June 7, 2023, no one appeared on the date of trial, and the case was dismissed without prejudice. On December 6, 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 Michael T. Martin states that the mailed notice of the final status conference and trial dates were lost or mis-filed and led to counsel’s nonappearance. (Martin Decl., ¶¶ 3, 4.) This motion was filed within 6 months of the dismissal. Counsel further attests that Plaintiff has a current address for Defendant and can serve him as soon as the case is returned to an active calendar. (Id., ¶ 9.)

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 noncalendaring of the June 7, 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.

Plaintiff is ordered to serve Defendant within 30 days.

The Court sets an OSC re dismissal for failure to file proof of service in approximately 60 days.  Any response to the OSC must be by written declaration filed at least five calendar days before the hearing.

The Court sets a TSC at the same date and time.


Order to Show Cause Re: Dismissal for Failure to File Proof of Service is scheduled for 06/03/2024 at 08:30 AM in Department 29 at Spring Street Courthouse.

Trial Setting Conference is scheduled for 06/03/2024 at 08:30 AM in Department 29 at Spring Street Courthouse.

Plaintiff is ordered to give notice.