Judge: Steven A. Ellis, Case: 22STCV23336, Date: 2024-05-21 Tentative Ruling

Case Number: 22STCV23336    Hearing Date: May 21, 2024    Dept: 29

Motion to Set Aside Dismissal filed by Plaintiff Isabel Gonzalez.

Tentative

The motion is granted.

Background

On July 19, 2022, Isabel Gonzalez (“Plaintiff”) filed a complaint against Letica Ramona Armenta (“Defendant”) for general negligence and motor vehicle negligence causes of action arising out of a bicycle versus automobile accident occurring on July 20, 2020. No answer has been filed in this matter.

On March 15, 2024, a request for dismissal was filed with the court. The matter was dismissed on March 18, 2024.

On April 9, 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 Jaime G. Farias states that he represented multiple clients under the names Isabel Gonzalez, Isabel Maria Gonzalez, Leticia Maurico Gonzalez, and Ivan Gonzalez, and that through inadvertent error filed a request for dismissal in this matter for a case that was settled for a similarly named client. (Faris Decl., ¶¶ 7, 8.)

The Court finds Plaintiff has established the dismissal occurred due to counsel’s mistake, inadvertence, surprise, or neglect due to the multiple clients with similar names and filing a dismissal for the wrong client.

Therefore, Plaintiff’s motion to set aside the dismissal is GRANTED.  

Conclusion

Plaintiff’s motion to set aside the dismissal is GRANTED.

The Court sets an OSC re entry of default or, alternatively, a Trial Setting Conference, in approximately 30-45 days.

Moving party to give notice.