Judge: Steven A. Ellis, Case: 23STCV01903, Date: 2024-10-21 Tentative Ruling

Case Number: 23STCV01903    Hearing Date: October 21, 2024    Dept: 29

Scarpelli v. Guttierrez
23STCV01903
Plaintiff’s Motion to Set Aside Dismissal

Tentative

The motion is granted.

Background

On January 30, 2023, Michael Scarpelli (“Plaintiff”) filed a complaint against Gulliermo Guttierrez (“Defendant”) and Does 1 through 100 for motor vehicle negligence, negligence per se, negligent infliction of emotional stress, and negligent entrustment arising out of an automobile accident occurring on February 7, 2021.

Plaintiff did not appear at the Final Status Conference or Trial.  On July 29, 2024, the Court dismissed this case.

On August 27, 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.)

Discussion

Plaintiff seeks to set aside the dismissal of the complaint.  Plaintiff submits a declaration from counsel in which counsel states that he failed to appear at the final status conference and the trial based on a calendaring error.  (Yadegar Decl., ¶¶ 4, 7.)

The Court finds that Plaintiff has timely filed a motion to set aside the dismissal and that a sufficient basis for the relief has been shown under Code of Civil Procedure section 473, subdivision (b).

Accordingly, the motion to set aside is granted.

Pursuant to Code of Civil Procedure section 473, subdivision (c)(1)(B), the Court orders counsel Moshe Yadegar, 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 July 29, 2024, dismissing this action.

The Court SETS an Order to Show Cause regarding Monetary Sanctions in the Amount of up to $500 Should Not be Imposed on Plaintiff and/or Counsel of Record Michael Mahgerefteh, 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 Moshe Yadegar, Esq. to pay $250 to the State Bar Client Security Fund by November 20, 2024.

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

Moving Party is to give notice.