Judge: Steven A. Ellis, Case: 22STCV01515, Date: 2024-01-17 Tentative Ruling

Case Number: 22STCV01515    Hearing Date: January 17, 2024    Dept: 29

Motion to Set Aside Dismissal filed by Plaintiff Justin Adam Duenas.

Tentative

The motion is GRANTED.

Background

On January 13, 2022, Justin Adam Duenas (“Plaintiff”) filed a complaint against Brenda Hernandez, Filiberto Hernandez Guardado, and Does 1 through 50 for the causes of action of Motor Vehicle Negligence and General Negligence.

On July 13, 2023, Plaintiff failed to appear at trial, and Plaintiff’s complaint was dismissed without prejudice.

On October 16, 2023, Plaintiff filed this motion to set aside dismissal.

No opposition has been filed.

Legal Standard

CCP section 473(b) provides, in relevant part: 

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 statute further provides that “the court shall, 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, vacate any … 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.”  (Id.)

“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.”  (C.C.P. §473(d).)

“[U]nder subdivision (d) of Code of Civil Procedure section 473, the court may set aside orders and judgments that are ‘void,’ including orders and judgments void for want of fundamental jurisdiction or personal jurisdiction. [Citation]” (Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97.) “Apart from any statute, courts have the inherent authority to vacate a default and default judgment on equitable grounds such as extrinsic fraud or extrinsic mistake.” (Id.) “Under the doctrine of extrinsic mistake, relief from a default and default judgment is potentially available when the clerk or trial court erred in entering them.” (Id. at 98.) “To set aside a [default] judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second[ ], the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last[ ], the moving party must demonstrate diligence in seeking to set aside the default once ... discovered.” (Id. at 100.)

Discussion

Plaintiff’s counsel contends that the action was initiated by attorney of record Michael Domingo, Esq, who worked at the same office. (Edwards Decl., ¶ 7.) Mr. Domingo left the firm on November 31, 2022. (Id., ¶ 8.) After inspecting the firm’s litigation calendar, it was revealed that no dates were calendared for Plaintiff’s complaint. (Id., ¶ 17.)

Under Code of Civil Procedure section 473(b), the Court shall set aside judgment within six months of entry with attorney declaration attesting to “her mistake, inadvertence, surprise, or neglect.” Defendant filed its motion less than six months after the entry of default, and counsel attests to the mistake that lead to the failure to appear at trial and the dismissal of the complaint.

Plaintiff has made a sufficient showing of attorney error to set aside dismissal under Code of Civil Procedure section 473(b).  Accordingly, the Court GRANTS Plaintiff’s Motion to Set Aside Dismissal.

Conclusion

The Court GRANTS Plaintiff’s Motion to Set Aside Dismissal.

Pursuant to Code of Civil Procedure 473, subdivision (c)(1)(B), the Court ORDERS Plaintiff’s counsel, the Law Offices of Jacob Emrani, to pay $500 to the State Bar Client Security Fund and to file proof of payment with the Court within 30 days of the hearing on this motion.

The Court ORDERS Plaintiff to serve the named defendants with the summons and complaint and to file proof of service within 60 days.

The Court sets a Trial Setting Conference and OSC re failure to file proof of service of the summons and complaint in approximately 60 days.

Moving party is ORDERED to give notice.