Judge: Steven A. Ellis, Case: 23STCV02104, Date: 2025-02-26 Tentative Ruling

Case Number: 23STCV02104    Hearing Date: February 26, 2025    Dept: 29

Wang v. Southern California Edison
23STCV02104
Plaintiffs’ Motion to Set Aside Dismissal

Tentative

The motion is granted.

Background

On December 23, 2022, Alex Weiming Wang and Lily Wang Li (collectively “Plaintiffs”) filed a complaint against Southern California Edison (“Defendant”) for general negligence and loss of consortium arising out of an incident in which, Plaintiffs allege, Plaintiff Alex Weiming Wang was injured while working on Defendant’s property on December 23, 2020.

Defendant has not appeared.

On July 16, 2024, Plaintiff did not appear at the Final Status Conference.

On July 30, 2024, Plaintiff did not appear at trial.  As a result, the Court dismissed this matter.

On January 23, 2025, Plaintiffs 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.)  A request for discretionary relief must be made (subject to certain exceptions) “within a reasonable time, in no case exceeding six months.”  (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 mandatory relief must be made within six months.  (Ibid.)

Discussion

Plaintiffs seek to set aside the July 30, 2024, dismissal based on counsel’s mistake under Code of Civil Procedure section 473, subdivision (b).

The motion is timely.

Counsel Ricardo Antonio Perez files a declaration stating that the failure to appear was the result of his “mistake, inadvertence, surprise, and neglect,” for which he takes “full responsibility.”  (Perez Decl., ¶ 4.)  Counsel explains that he mistakenly believed that another lawyer would appear.  (Id., ¶ 8.)

The Court finds counsel’s declaration sufficient to support mandatory relief under Code of Civil Procedure section 473, subdivision (b).  Counsel’s mistake or inadvertence caused the failure to appear, which resulted in the dismissal.

Code of Civil Procedure section 473, subdivision (c), also provides as follows:

“(1) 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 attorney 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.

(2) However, where the court grants relief from a default or default judgment pursuant to this section based upon the affidavit of the defaulting party’s attorney attesting to the attorney’s mistake, inadvertence, surprise, or neglect, the relief shall not be made conditional upon the attorney’s payment of compensatory legal fees or costs or monetary penalties imposed by the court or upon compliance with other sanctions ordered by the court.”

The Court has reviewed the file and considered the evidence in the record.  The Court exercises its discretion, upon granting relief under Code of Civil Procedure section 473, to direct that the offending attorney, Ricardo Antonio Perez, Esq., pay the amount of $250 to the State Bar Client Security Fund.  (Code Civ. Proc., § 473, subd. (c)(1)(B).)

Conclusion

The Court GRANTS Plaintiffs’ motion to set aside the dismissal.

The Court SETS ASIDE the dismissal entered on July 30, 2024.

Pursuant to Code of Civil Procedure section 473, subdivision (c)(1)(B), the Court ORDERS Plaintiffs’ counsel Ricardo Antonio Perez, to pay $250 to the State Bar Client Security Fund, and to file proof of payment with the Court, within 30 days.

The Court sets an Order to Show Cause re Filing of Proof of Service or, in the alternative, a Trial Setting Conference on April  __, 2025, at 8:30 am in Department 29 of the Spring Street Courthouse.

The Court sets an OSC re proof of payment of $250 by counsel Ricardo Antonio Perez, Esq. to the State Bar Client Security Fund on April __, 2025, at 8:30 am in Department 29 of the Spring Street Courthouse.

Plaintiffs are ordered to give notice.