Judge: Steven A. Ellis, Case: 22STCV27598, Date: 2024-08-09 Tentative Ruling

Case Number: 22STCV27598    Hearing Date: August 9, 2024    Dept: 29

Saborio v. City of Los Angeles
22STCV27598
Plaintiff’s Motion to Set Aside Dismissal

Tentative

The motion is granted.

Background

On August 24, 2022, Oscar Arthur Saborio (“Plaintiff”) filed a complaint against City of Los Angeles and Does 1 through 50 for premises liability arising out of a bicycle accident on the sidewalk near 6345 Balboa Boulevard in Encino on June 6, 2021. City of Los Angeles has yet to appear in this matter.

After Plaintiff failed to appear for the Final Status or the Trial, the Court dismissed the complaint on February 21, 2024, without prejudice.

On April 16, 2024, Plaintiff filed this 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.)

Discussion

Plaintiff requests the Court set aside the dismissal of his complaint on February 21, 2024.

Plaintiff’s counsel states that the prior attorney assigned to the case ceased working at the law firm in or around November 2022, and due to inadvertence or neglect, no one calendared the Final Status Conference (on February 7, 2024) or the Trial (on February 21, 2024).  (Clark Decl., ¶¶ 4-5.)  Because the dates were not calendared, no one appeared, leading to the dismissal of the case.

The Court finds that Plaintiff has established that the dismissal was the result of inadvertence or neglect of counsel, requiring the setting aside of the dismissal.

As such, the motion to set aside the dismissal is granted.

Conclusion

The Court GRANTS Plaintiff’s motion to set aside dismissal.

The Court SETS ASIDE the Order of Dismissal filed on February 21, 2024.

The Court SETS an OSC re Dismissal for Failure to Prosecute Diligently (Delay in Service of the Summons and Complaint) in approximately 60 days.

The Court SETS a Trial Setting Conference for the same date and time.

Moving party to give notice.