Judge: Steven A. Ellis, Case: 21STCV46567, Date: 2024-03-11 Tentative Ruling

Case Number: 21STCV46567    Hearing Date: March 11, 2024    Dept: 29

Motion for Relief from Dismissal filed by Plaintiff Kary Law.

Tentative

The motion is granted.

Background

On December 21, 2021, Plaintiff Kary Law (“Plaintiff”) filed a complaint against Belinda Feldman (“Defendant”), and Does 1 through 20 asserting causes of action for motor vehicle negligence and general negligence arising from an automobile accident occurring on December 22, 2019.  Defendant filed an answer on July 5, 2023.

According to Plaintiff’s counsel, what followed was some type of miscommunication between counsel.  There was some indication that a driver other than Defendant may have been at fault for the accident.  (Ruszecki Decl., ¶ 7.)  Plaintiff’s counsel signed a request for dismissal dated July 25, 2023, and forwarded it to Defendant’s counsel; the dismissal reads “Only as to Defendant Belinda Feldman, upon addition of Defendants Gerson Garcia Mosqueda Antonio.”  (Id., Exh. 1.)  On July 31, 2023, Plaintiff’s counsel sent an email to Defendant’s counsel sending the dismissal and stating, “To confirm, you agree not to file the attached dismissal until we have successfully added Gerson Garcia and Mosqueda Antonio.  …  We intend to move forward ASAP, and will also confirm with the court at the TSC August 10.  (Ibid.)

Plaintiff took no action to name the Doe defendants or file an amended complaint.  On October 16, 2023, Defendant’s counsel sent an email stating, “I am filing this dismissal.  It has been 3 months.”  (Id., Exh. 2.)

On October 17, 2023, the dismissal was filed.  Dismissal was entered on October 20, 2023.

On January 31, 2024, Plaintiff filed this motion for relief from the dismissal.

No opposition has been filed.

Legal Standard

“No dismissal may be made or entered, or both, under paragraph (1) or (2) of subdivision (b) except upon the written consent of the attorney for the party or parties applying therefor, or if consent of the attorney is not obtained, upon order of dismissal by the court after notice to the attorney.” (Code Civ. Proc., § 581, subd. (j).)

“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. Proc., § 473, subd. (b).)

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”  (Code Civ. Proc., § 473, subd. (d)

Discussion

Plaintiff has shown that the dismissal was entered without the consent of Plaintiff’s counsel.  (Ruszecki Decl., ¶¶ 7-10 & Exhs. 1-2.)  Accordingly, the order of dismissal is void, and the Court sets it aside.

Plaintiff’s motion for relief from dismissal is GRANTED.  

Conclusion

The Court GRANTS Plaintiff’s motion for relief from dismissal.

The Court SETS ASIDE the dismissal entered on October 20, 2023.

The Courts sets a Trial Setting Conference in approximately 60 days.

Trial Setting Conference is scheduled for 05/13/2024 at 08:30 AM in Department 29 at Spring
Street Courthouse. 

Plaintiff is ordered to give notice.