Judge: Steven A. Ellis, Case: 22STCV24422, Date: 2025-04-15 Tentative Ruling

Case Number: 22STCV24422    Hearing Date: April 15, 2025    Dept: 29

Sarkisyan v. Eccles
22STCV24422
Plaintiff’s Motion to Set Aside Dismissal

Tentative

The motion is denied as untimely.

Background

On July 28, 2022, Diana Sarkisyan (“Plaintiff”) filed a complaint against Cythina Eccles (“Defendant”) and Does 1 through 20 for negligence arising out of an alleged automobile accident on February 4, 2020.

On November 9, 2022, Defendant filed an answer.

On January 11, 2024, counsel for both parties appeared at the Final Status Conference, but the final status conference documents were not submitted.  Based on the stipulation of counsel, the Court continued the Final Status Conference to January 25 and the trial to February 9, 2024.

On January 25, 2024, Plaintiff’s counsel did not appear at the Final Status Conference.

On February 9, 2024, Plaintiff’s counsel did not appear for Trial, and the Court dismissed the action without prejudice.

On May 10, 2024, Plaintiff filed a motion to set aside the dismissal.  The motion was denied, as no proof of service or supporting declaration was filed.

On March 13, 2025, Plaintiff filed this motion, again seeking an order to set aside the dismissal.  Defendant filed an opposition on March 28.  No reply has been filed.

Legal Standard

Code of Civil Procedure section 473, subdivision (b) provides for both discretionary and mandatory relief from dismissal.

As to discretionary relief, the statute states: “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, subd. (b).) Where such an application for discretionary relief is made, the motion must be accompanied by a copy of the answer or pleading proposed to be filed; “otherwise the application shall not be granted.”  (Ibid.)  A request for discretionary relief must be made (subject to certain exceptions) “within a reasonable time, in no case exceeding six months.”  (Ibid.) 

The statute also provides for mandatory relief from dismissal, default, or default judgment:

“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 … unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” 

(Ibid.)

A request for mandatory relief must be made within six months.  (Ibid.)

Discussion

Plaintiff seeks to set aside the order of dismissal entered on February 9, 2024.  Plaintiff filed this motion in March 2025, more than thirteen months after the dismissal order was entered.

As a motion for relief must be filed within six months after the dismissal, Plaintiff’s motion is denied as untimely.

Plaintiff’s counsel states that she attempted to reserve a hearing date but could not do so because Department 32 (the department to which this case was previously assigned) was shut down permanently.  But Department 32 was not closed until December 2024 – and counsel presents no evidence that Plaintiff filed, or attempted to file, any motion to set aside the dismissal within six months of the dismissal order (other than the one motion that was denied by the Court in May 2024).

Conclusion

The Court DENIES Plaintiff’s motion to set aside the dismissal as untimely under Code of Civil Procedure section 473, subdivision (b).

Moving Party is to give notice.