Judge: Steven A. Ellis, Case: 23STCV09781, Date: 2024-12-16 Tentative Ruling

Case Number: 23STCV09781    Hearing Date: December 16, 2024    Dept: 29

Rios v. Webster
23STCV09781
Plaintiffs’ Motion to Set Aside Dismissal

Tentative

The motion is granted.

Background

On May 2, 2023, Norberto Rios and Jorge Barraza (collectively “Plaintiffs”) filed a complaint against Linda Webster and Does 1 through 50 for motor vehicle negligence and general negligence arising out of an alleged accident on October 12, 2022.

There was no appearance at the Final Status Conference on October 15, 2024.  When there was again no appearance at trial on October 29, 2024, the Court dismissed this matter.

On November 12, 2024, Plaintiffs filed this motion to set aside the dismissal. No defendant has appeared, and no opposition was 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.)

Section 473, subdivision (c), 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.”

Discussion

Plaintiffs move to set aside the dismissal of their complaint.  Plaintiffs’ counsel has presented a declaration stating, under oath, that the failure to appear at trial was the result of a calendaring error.  (Green Decl., ¶ 10.)

The motion is granted.  Plaintiffs have shown that the dismissal was the result of the mistake and inadvertence of their counsel.

Accordingly, the motion to set aside is GRANTED.

Pursuant to Code of Civil Procedure section 473, subdivision (c)(1)(B), the Court orders counsel Carla Green, 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 October 29, 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, Michael R. Parker,  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 Carla Green, Esq. to pay $250 to the State Bar Client Security Fund by January 17, 2025.

The Court ORDERS Counsel Carla Green, Esq., to file, by January 31, 2025, notice of the proof of the payment to the State Bar Client Security Fund. 

Moving Party is to give notice.