Judge: Theodore R. Howard, Case: 19-1110467, Date: 2022-09-15 Tentative Ruling

The Motion to Set Aside Dismissal filed by Plaintiff, Yu Jin Kim (“Plaintiff”) is GRANTED. 

Plaintiff seeks relief under the mandatory provision of C.C.P. § 473(b).

C.C.P. § 473(b) provides, in pertinent part:

(b) 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 or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief…shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken…Notwithstanding any other requirements of this section, the court shall, 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, vacate any…resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.

The law favors judgments on the merits.  Thus, on a motion for relief from dismissal, “doubts must be resolved in favor of relief, with an order denying relief scrutinized [on appeal] more carefully than an order granting it.”  (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134 [emphasis in original].)

Here, the entire action was dismissed without prejudice on December 10, 2021, for failure to proceed.  (ROA 47.)  This motion to vacate the dismissal was filed within six months, on March 25, 2022.  Thus, the motion is timely made.

Plaintiff’s counsel submitted a declaration attesting that the failure to appear at the December 10, 2021 hearing and file a default packet was due to counsel’s mistake, inadvertence, surprise, and neglect.  (Declaration of Trevor J. Herrera [“Herrera Decl.”] ¶¶ 3-10.)

Given the policy favoring disposition of cases on the merits, the Court finds the moving papers demonstrate good cause for granting the relief requested.

Accordingly, the motion is GRANTED.  (C.C.P. § 473(b).)

A default judgment packet must be filed within 30 days.

Plaintiff to give notice.