Judge: Steven A. Ellis, Case: 23STCV02926, Date: 2024-10-02 Tentative Ruling
Case Number: 23STCV02926 Hearing Date: October 2, 2024 Dept: 29
Melendez v. Ilan
23STCV02926
Plaintiff’s Motion to Set Aside Dismissal
Tentative
The motion is granted.
Background
On February 9,
2023, Alejandro Melendez (“Plaintiff”) filed a complaint against Ilan Nunez
(“Defendant”) for motor vehicle negligence and general negligence arising out
of an automobile accident occurring on February 12, 2021.
On July 25,
2024, Plaintiff failed to appear at the Final Status Conference.
August 8, 2024, Plaintiff
failed to appear at trial. The Court
dismissed Plaintiff’s complaint without prejudice.
On August 29,
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 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 his complaint.
Plaintiff’s motion
is timely and is accompanied by a declaration from counsel establishing that the
dismissal resulted from counsel’s mistake and inadvertence. (Rudin Decl., ¶ 3.)
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 Alejandro Melendez’s motion to
set aside the dismissal.
The Court SETS ASIDE the dismissal order dated August 8,
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 Eric G. Rudin, 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 and 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.