Judge: Steven A. Ellis, Case: 22STCV28562, Date: 2025-01-24 Tentative Ruling
Case Number: 22STCV28562 Hearing Date: January 24, 2025 Dept: 29
Storms v. Susoeff
22STCV28562
Plaintiff’s Motion to Set Aside Dismissal
Tentative
The motion is granted.
Background
On September 1, 2022, Tristian Lee Storms (“Plaintiff”)
filed a complaint against Rose Martha Susoeff (“Defendant”) and Does 1 through
50 for general negligence and motor vehicle negligence arising out of an accident
on September 23, 2020.
Plaintiff filed a proof of service on March 20,
2024.
On May 7, 2024, the Court set an Order to Show Cause re Dismissal
for Failure to Obtain Default for July 11, 2024. When Plaintiff did not respond to the OSC or
appear on July 11, the Court dismissed the entire action without prejudice.
On December 23,
2024, Plaintiff filed a motion to set aside the dismissal.
No opposition
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.) The application for relief must be made within
a reasonable time, and in no case exceeding six months after the judgment. (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 discretionary relief under section 473,
subdivision (b), must be made (subject to certain exceptions) “within a
reasonable time, in no case exceeding six months.” (Ibid.) A request for mandatory relief must be made
within six months. (Ibid.)
Subdivision (c)(1) of section 473 provides, in part:
“Whenever the court grants relief from a
default, default judgment, or dismissal based on any of the provisions of this
section, the court may do any of the following:
(A)
Impose a penalty of no greater than one thousand
dollars ($1,000) upon an offending attorney or party.
(B)
Direct that an offending party pay an amount no
greater than one thousand dollars ($1,000) to the State Bar Client Security
Fund.
(C)
Grant other relief as is appropriate.”
Discussion
Plaintiff seeks
to set aside the dismissal of the complaint.
Plaintiff’s motion
is timely and is accompanied by a declaration from counsel establishing that
the dismissal resulted from a calendaring error in counsel’s office. (Fradkin Decl., ¶ 5.)
The motion is granted.
Pursuant to Code of Civil Procedure section 473,
subdivision (c)(1)(B), counsel is ordered to pay $250 to the State Bar Client
Security Fund.
Conclusion
The Court GRANTS Plaintiff’s motion to set aside the
dismissal.
The Court SETS ASIDE the dismissal order dated July 11, 2024.
The Court SETS an Order to Show Cause regarding proof of
service of the summons and complaint or, in the alternative, a Trial Setting
Conference, in approximately 60 days.
The Court ORDERS counsel Igor Fradkin, Esq., to pay $250
to the State Bar Client Security Fund within 30 days and to file proof of
payment with the Court within 45 days.
The Court SETS an Order to Show Cause regarding filing
the proof of payment to the State Bar Client Security Fund in approximately 60
days.
Moving party is ordered to give notice to any parties who
have appeared or who are served or appear prior to the next hearing date.