Judge: Steven A. Ellis, Case: 22STCV05799, Date: 2024-05-01 Tentative Ruling

Case Number: 22STCV05799    Hearing Date: May 1, 2024    Dept: 29

Plaintiff’s Motion to Set Aside Dismissal

Tentative

The Court will hear from counsel.

Background

On February 15, 2022, Gustavo Zepeda (“Plaintiff”) filed a complaint against Hector Chavez for motor vehicle negligence and general negligence arising out of an automobile accident occurring on February 25, 2020. Defendant has not answered or otherwise appeared.

On August 1, 2023, the Final Status Conference was placed off calendar and the Court set an OSC re Dismissal for October 6, 2023.

On October 6, 2023, Plaintiff did not appear, and the case was dismissed.

On April 3, 2024, 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 Albert Elmassian states that his firm mistakenly failed to calendar the October 6, 2023 hearing date. (Elmassian Decl., ¶ 5.) Counsel continues that another attorney texted the firm regarding their case being called, but due to further errors “the wrong information was relayed to the court.”  (Id., ¶ 6.)

No opposition has been filed.

The Court finds Plaintiff’s declaration establishes that dismissal occurred due to counsel’s mistake, inadvertence, surprise or neglect.

The declaration, however, is not signed under penalty of perjury.  The Court will ask counsel to be sworn and affirm that the information in the declaration is true and correct.

Conclusion

The Court will hear from counsel.

Provided that the information in counsel’s declaration is affirmed, the Court is prepared to grant Plaintiff’s motion to set aside the dismissal.

The Court will then set aside the order of dismissal entered on October 6, 2023.

The Court will then set an OSC re Dismissal for Failure to File Proof of Service within approximately 60 days.

Moving party to give notice.