Judge: Steven A. Ellis, Case: 22STCV29482, Date: 2024-10-22 Tentative Ruling

Case Number: 22STCV29482    Hearing Date: October 22, 2024    Dept: 29

Alam v. Barrientos
22STCV29482
Plaintiff’s Motion to Set Aside Dismissal

Tentative

The motion is granted.

Background

On September 9, 2022, MD Alam (“Plaintiff”) filed a complaint against Aroldo Barrientos (“Defendant”) and Does 1 through 100 for general negligence and motor vehicle negligence arising out of an automobile accident occurring on March 10, 2022.

At the Final Status Conference on February 23, 2024, the Court noted that no proof of service had been filed.  The Court vacated the trial date and set an OSC re dismissal for failure to file a proof of service for September 9, 2024.

On September 9, 2024, there was no appearance.  The Court dismissed the complaint without prejudice.

On September 25, 2024, Plaintiff filed this 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 22STCneglect … 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.)

Discussion

Plaintiff requests that the Court’s order of dismissal be set aside under Code of Civil Procedure section 473.

In support of the motion, Plaintiff submits a declaration from counsel.  Counsel states that the failure to appear at the OSC hearing on September 9, 2024, was the result of Counsel’s calendaring error.  (Galajian Decl., ¶¶ 1, 3.)

The Court finds that this motion is timely filed and that Plaintiff has established that the dismissal was entered as a result of the mistake of Plaintiff’s attorney.  Accordingly, the motion is granted.

Pursuant to Code of Civil Procedure section 473, subdivision (c)(1)(B), the Court orders counsel Karapet Galajian, Esq., to pay $250 to the State Bar Client Security Fund.

Conclusion

The Court GRANTS Plaintiff’s motion to set aside the dismissal of this action.

The Court SETS ASIDE the order filed September 9, 2024, dismissing this action.

The Court SETS an Order to Show Cause regarding Why Monetary Sanctions in the Amount of up to $500 Should Not be Imposed on Plaintiff and/or Counsel of Record, George G. Mgdesyan, Esq., for Failure to Serve Defendant Within the Time Period Set Forth in California Rules of Court, Rule 3.110(b), or, alternatively, a Trial Setting Conference in approximately 60 days.  Any response to the OSC must be in writing and must be filed at least five court days prior to the OSC hearing.

The Court ORDERS Counsel Karapet Galajian, Esq. to pay $250 to the State Bar Client Security Fund by November 21, 2024.

The Court ORDERS Counsel Karapet Galajian, Esq., to file proof of service of the payment with the Court by December 6, 2024. 

Moving Party is to give notice.