Judge: Steven A. Ellis, Case: BC695694, Date: 2023-08-11 Tentative Ruling

Case Number: BC695694    Hearing Date: August 11, 2023    Dept: 29

TENTATIVE 

Plaintiffs Sang Hwa Kwon, individually and on behalf of minors, Carlos Kwon and Christopher Kwon’s Motion to Set Aside the Dismissal is GRANTED. 

Dismissal entered on June 13, 2023, is hereby vacated. 

Legal Standard 

Pursuant to Code of Civil Procedure section 473 subdivision (b), both discretionary and mandatory relief is available to parties when a case is dismissed.  Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  (Code of Civ. Proc. § 473, subd. (b).)  Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”  (Ibid.)  Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.  (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) 

“‘[W]hen relief under section 473¿is¿available, there is strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.) 

Discussion 

The motion is timely filed under Code of Civil Procedure section 473 subdivision (b).¿¿The action was dismissed on June 13, 2023.¿ This motion to Set Aside the Dismissal was filed on June 13, 2023, within six months after dismissal was entered, and within a reasonable time.  Also, this motion is accompanied with an attorney’s sworn affidavit attesting to his mistake.  Specifically, Plaintiffs’ counsel last appeared in April 2023 for the O.S.C. re: default judgment where the Court continued this matter for June 13, 2023.  (Declaration of Kim, ¶ 3.)  Plaintiff’s counsel failed to appear on June 13, 2023 as a result of his own mistake because he failed to properly calendar for the O.S.C. hearing date.  (Kim Decl. ¶ 4.)  Plaintiff’s counsel  realized the mistake on June 19, 2023, as he prepared to file the Motion for Publication.  (Kim Decl. ¶ 4.) 

Because Plaintiffs’ motion is timely and accompanied with an attorney’s affidavit sufficiently establishing mistake, inadvertence or neglect, the motion is GRANTED. 

Conclusion 

For the foregoing reasons, 

Plaintiffs Sang Hwa Kwon, individually and on behalf of minors, Carlos Kwon and Christopher Kwon’s Motion to Set Aside the Dismissal is GRANTED. 

Dismissal entered on June 13, 2023, is hereby vacated. 

Moving party is to give notice.