Judge: Steven A. Ellis, Case: 23STCV19720, Date: 2025-03-27 Tentative Ruling
Case Number: 23STCV19720 Hearing Date: March 27, 2025 Dept: 29
Paz v. Carter
23STCV19720
Plaintiff’s Motion to Set Aside Dismissal
Tentative
The motion is granted.
Background
On August 17, 2023, Manuel Paz
(“Plaintiff”) filed a complaint against Jasmine Carter, Erykka Fite, and Does 1
through 50 for negligence/negligence per se arising out an automotive accident on
January 24, 2024.
There was no appearance at the Final Status Conference on
January 30, 2025.
When there was no appearance at the trial on February 13,
2025, the case was dismissed.
On February 25,
2025, 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.)
Discussion
Plaintiff moves under Code of Civil Procedure section
473, subdivision (b), to set aside the dismissal of this case.
The motion is timely.
Counsel has submitted a declaration stating that he failed to appear at
trial due to emergency issues relating to the health of his wife. (Javaherizadeh Decl., ¶¶ 1-2.)
Plaintiff has shown a basis for mandatory relief under Code
of Civil Procedure section 473, subdivision (b). The motion is granted.
Conclusion
The Court GRANTS Plaintiff’s motion to set aside the dismissal.
The Court VACATES and SETS ASIDE the order of dismissal
entered on February 13, 2025.
The Court SETS an Order to Show Cause re Dismissal for
Failure to File Proof of Service, or, in the alternative, a Trial Setting Conference,
on 06/__/2025 at 8:30 a.m. in Department 29 of the Spring Street Courthouse.
Moving Party is to give notice.