Judge: Steven A. Ellis, Case: 22STCV16159, Date: 2024-12-06 Tentative Ruling

Case Number: 22STCV16159    Hearing Date: December 6, 2024    Dept: 29

Saremi v. Nava
22STCV16159
Plaintiff’s Motion to Set Aside Dismissal

Tentative

The motion is continued.

Background

On May 13, 2022, Sy Siamak Saremi (“Plaintiff”) filed a complaint against Arthur Nava and Yadira Reyes for motor vehicle negligence and general negligence causes of action arising out of an automobile accident occurring on May 13, 2020.

On May 16, 2024, the Court dismissed this matter based on Plaintiff’s non-appearance for the OSC re Dismissal for Failure to Serve/Prosecute Pursuant to CCP Sections 583.410, 583.420(a)(1) and CRC Rule 3.110(b) and (f).

Defendants have yet to appear in this matter.

On November 13, 2024, Plaintiff filed a motion to set aside the dismissal. No opposition has been filed.

Legal Standard

Code of Civil Procedure § 473(b) provides for mandatory and discretionary relief from dismissal. “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 through his or her mistake, inadvertence, surprise, or excusable neglect.” Code of Civil Procedure § 473(b). Where such an application for discretionary relief is made, the motion shall be accompanied by a copy of the answer or pleading proposed to be filed, or the application will not be granted. (Id.) The court must grant relief from dismissal where the application is accompanied by an attorney affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. (Id.) In either case, the application must be made within a reasonable time, and in no case exceeding six months after the judgment. (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.” (Code of Civ. Proc., § 473(d).)

Discussion

Plaintiff requests the dismissal of Plaintiff’s complaint be set aside under Code of Civil Procedure section 473(b) as the dismissal arose from counsel’s mistake.

In the declaration submitted in support of the motion, Plaintiff’s counsel explains why he failed to appear at a hearing on July 17, 2023. (Bald Decl., ¶ 2.)  The case was dismissed, however, when there was no appearance at a hearing on May 16, 2024.

As this may be simply a typographical error or oversight by counsel, the Court continues the hearing for approximately 30 days and grants Plaintiff leave to file a supplemental declaration in support of the motion explaining why there was no appearance on May 16, 2024.

Conclusion

The Court CONTINUES the hearing on Plaintiff’s motion for approximately 30 days.

The Court GRANTS Plaintiff LEAVE to file a supplemental declaration in support of the motion no later than sixteen court days prior to the hearing. 

Moving Party is to give notice to any party who has appeared.