Judge: Steven A. Ellis, Case: 21STCV46023, Date: 2023-08-31 Tentative Ruling

Case Number: 21STCV46023    Hearing Date: August 31, 2023    Dept: 29

TENTATIVE

Plaintiff Rushell Mascal’s Motion for Mandatory Relief from Dismissal Pursuant to C.C.P. § 473(b) is GRANTED. The Court orders the dismissal entered June 16, 2023, set aside.

Legal Standard

Code of Civil Procedure “Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) The mandatory provision states in relevant part:

[W]henever 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.

(Code Civ. Proc., § 473, subd. (b).) 

“The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys. [Citation.]”  (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723, emphasis added.) Relief under Section 473(b) is also available to plaintiffs because dismissal is the “practical equivalent of a default judgment.” (Aldrich v. San Fernando Valley Lumber Co., Inc. (1985) 170 Cal.App.3d 725.) 

Discussion

Pursuant to Code of Civil Procedure section 473, subdivision (b) (“Section 473(b)”), Plaintiff Rushell Mascal (“Plaintiff”) seeks an order setting aside the order of this Court dated June 16, 2023, dismissing plaintiffs’ Complaint without prejudice.

The Court finds it proper to grant Plaintiff’s motion under the mandatory provision of Section 473(b). First, the application is timely as it is made within six months of the dismissal. Second, Plaintiff’s counsel testifies that his law firm was in the process of transferring the case to another attorney (after the attorney that was originally assigned to the case suddenly left counsel’s law firm), and the staff unintentionally failed to calendar the June 16, 2023 non-jury trial date. (Motion, declaration of Robert Vander Veer (“Veer Decl.”), ¶ 5.) Counsel did not receive the case until June 19, 2023, 3 days after the dismissal. (Veer Decl., ¶ 5.) On July 3, 2023, counsel received the minute order for the missed non-jury trial and realized that the hearing had been unintentionally missed while the case was being redistributed. (Veer Decl., ¶ 6.) Therefore, counsel’s failure to appear was due to counsel’s mistake. (Veer Decl., ¶ 7.)

Conclusion

Accordingly, Plaintiff Rushell Mascal’s Motion for Mandatory Relief from Dismissal Pursuant to C.C.P. § 473(b) is GRANTED. The Court orders the dismissal entered June 16, 2023, set aside.

The Court sets a Trial Setting Conference for early December 2023.

The Court notes that no relief has been sought on behalf of Plaintiff Francis Avila, whose claims remain dismissed.

Moving party is ordered to give notice.