Judge: Walter P. Schwarm, Case: 30-2020-01129820, Date: 2022-09-13 Tentative Ruling

Plaintiff’s (Velocity Investments, LLC) unopposed Motion to Vacate Dismissal and Reinstate Case (Motion), filed on 5-5-22 under ROA No. 40, is GRANTED.

Code of Civil Procedure section 473, subdivision (b), states, in part, “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 accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and 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 (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) 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 court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. . . .”

Ron Burns Constructions Co., Inc. v. Moore (2010) 184 Cal.App.4th 1406, 1413 (disapproved on other grounds in Even Zohar Constr. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 844) states, “ ‘[T]he policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary. [Citations.]’ [Citation.] Hence, ‘  “ ‘[t]he provisions of section 473 of the Code of Civil Procedure are to be liberally construed. . . .’ [Citation.]” [Citation.] . . .  “[A]ny doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” [Citation.]’ (Maynard v. Brandon (2005) 36 Cal.4th 364, 371–372, 30 Cal.Rptr.3d 558, 114 P.3d 795.) ‘Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations “very slight evidence will be required to justify a court in setting aside the default.” [Citations.]’ [Citation.]” [¶] “ ‘A motion seeking such relief lies within the sound discretion of the trial court, and the trial court's decision will not be overturned absent an abuse of discretion. [Citations.] However, the trial court's discretion is not unlimited and must be  “ ‘exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ ”  [Citations.]’  (Elston v. City of Turlock, supra, 38 Cal.3d at p. 233, 211 Cal.Rptr. 416, 695 P.2d 713.) ‘[A] trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. [Citations.]’ [Citation.]”

Evan Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838-839 (Zohar), explains, “Section 473(b) contains two distinct provisions for relief from default. The first provision, presented here only for context, is discretionary and broad in scope: ‘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.’ (§ 473(b).) The second provision is mandatory, at least for purposes of section 473, and narrowly covers only default judgments and defaults that will result in the entry of judgments. This provision, the one here at issue, declares as follows: ‘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 (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) 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.’ (§ 473(b).)”

On 1-7-22, the court dismissed this action because Plaintiff failed to appear or the jury trial set on 1-7-22. (1-7-22 Minute Order.)  Plaintiff timely filed this Motion on 5-5-22 which was within six months of the dismissal.  Plaintiff’s attorney has filed an affidavit of fault that states, “Upon a review of why no appearance was made on January 7, 2022, it was determined that due to a clerical mistake the person responsible for scheduling an attorney to appear on behalf of plaintiff inadvertently failed to do so. Therefore no appearance was made.” (Godsmith Decl., ¶ 4.) Plaintiff’s counsel has made a sufficient showing of mistake or inadvertence sufficient to support mandatory relief under Code of Civil Procedure section 473, subdivision (b).

Therefore, the court GRANTS Plaintiff’s (Velocity Investments, LLC) unopposed Motion to Vacate Dismissal and Reinstate Case, filed on 5-5-22 under ROA No. 40, and VACATES the court’s 1-7-22 order that dismissed this action.

The court requests Plaintiff’s counsel to appear at the hearing on 9-13-22 to discuss the status of the case.

Plaintiff is to give notice.