Judge: Steven A. Ellis, Case: 22STCV03842, Date: 2024-08-07 Tentative Ruling

Case Number: 22STCV03842    Hearing Date: August 7, 2024    Dept: 29

Gordon v. Sherburn
Case No. 22STCV03842
Motion to Set Aside Dismissal filed by Plaintiff

Tentative

The motion is granted.

Background

On January 31, 2022, Stephanie Gordon, trustee of the Marjorie Anne Gordon Trust (“Plaintiff”) filed a complaint against Joseph Sherburn (“Sherburn”), Lonnie Ray Danniel (“Daniel”), and Does 1 through 5 for motor vehicle negligence and general negligence arising from an accident occurring on December 4, 2021.

On July 8, 2022, Sherburn filed an answer and on July 14, 2022, Sherburn filed a cross-complaint against Daniel. On June 5, 2023, Daniel filed an answer to Plaintiff’s complaint and Sherburn’s cross-complaint.

On November 16, 2023, Plaintiff filed a notice of settlement of the entire case. The following day, the Court scheduled an OSC re dismissal for January 26, 2024.

On January 26, 2024, the Court, at the request of Plaintiff, dismissed all causes of action against Sherburn with prejudice.

Also on January 26, Plaintiff did not appear at the OSC.  Accordingly, the Court dismissed the entire complaint without prejudice.   

On June 27, 2024, Plaintiff filed this motion to set aside the dismissal of the entire case. 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 seeks to have the dismissal of her complaint against Daniel set aside.

Plaintiff’s counsel Kenneth Gaugh states that counsel failed to appear at the January 26, 2024 OSC re Dismissal due to a malfunction of CourtConnect and neglected to timely file the request for dismissal of Sherburn. (Gaugh Decl., ¶¶ 4, 5.) Because of the failure to appear, the entire matter was dismissed.

The Court finds Plaintiff has established the dismissal occurred due to counsel’s mistake, inadvertence, surprise, or neglect due to the calendaring error.  Accordingly, the motion is granted.

Conclusion

The Court GRANTS Plaintiff’s motion.

The Court VACATES and SETS ASIDE the order of dismissal of the entire action without prejudice filed on January 26, 2024.

The Court SETS an OSC re Dismissal (Settlement) is set for September __,2024, at 8:30 am in Department 29 of the Spring Street Courthouse.

Moving party to give notice.