Judge: Steven A. Ellis, Case: 22STCV27775, Date: 2024-05-16 Tentative Ruling

Case Number: 22STCV27775    Hearing Date: May 16, 2024    Dept: 29

Motion to Set Aside Dismissal filed by Plaintiff Lula Frierson-Dean.

Tentative

The motion is granted.

Background

On August 25, 2022, Lula Frierson-Dean (“Plaintiff”) filed a complaint against Kayla Properties LLC/Ethan 26 LLC., dba Slauson Super Mall, and Does 1 through 10 for negligence and premises liability arising out of a ceiling tile falling and striking Plaintiff on the head on July 24, 2021.

On filing, the case was assigned a trial date of February 22, 2024.  When Plaintiff did not appear for trial, the case was dismissed.

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.” (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 p. 625.)

Discussion

Plaintiff’s counsel Kenneth C. Yeager states that he failed to appear at the final status conference and trial because he did not schedule the relevant dates on his calendar. (Yeager Decl., ¶ 5.) Counsel contends the matter was dismissed based on his mistake. (Id., ¶ 6.)

No opposition has been filed.

The Court finds Plaintiff has established the dismissal occurred due to counsel’s mistake, inadvertence, surprise or neglect due to the miscalendaring of hearing dates for this matter causing counsel’s nonappearance and subsequent dismissal.

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

Conclusion

The Court GRANTS Plaintiff’s motion.

The Court SETS ASIDE the dismissal order dated February 22, 2024.

The Court SETS an OSC re dismissal for failure to file proof of service of summons and complaint in approximately 60 days.  The Court SETS a Trial Setting Conference at the same time.

Moving party to give notice.