Judge: William A. Crowfoot, Case: 21STCV00722, Date: 2022-08-25 Tentative Ruling

Case Number: 21STCV00722    Hearing Date: August 25, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

 

MAYA MORALES,

                   Plaintiff(s),

          vs.

 

KAITLYN J. MCGRIFF, et al.,

 

                   Defendant(s).

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      CASE NO.: 21STCV00722

 

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO SET ASIDE DISMISSAL

 

 

Dept. 27

1:30 p.m.

August 25, 2022

 

I.            INTRODUCTION

On January 8, 2021, Plaintiff Maya Morales (“Plaintiff”) filed this action against Defendant Kaitlyn J. McGriff for motor vehicle and general negligence arising out of a motor vehicle accident that occurred on January 15, 2019.

On July 8, 2022, after finding there were no appearances by or for either side nor any communication with the Court as to why there are no appearances at the non-jury trial, the Court ordered the entire case dismissed without prejudice pursuant to CCP section 581(b)(3).

On August 1, 2022, Plaintiff filed this motion to set aside dismissal.  No opposition has been filed.

II.          LEGAL STANDARD

“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.”  (Code Civ. Proc., § 473, subd. (b).)  Application for this relief shall be made within a reasonable time, in no case exceeding six months, after judgment, dismissal, order, or proceeding was taken.  (Id.)  “[T]he 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.”  (Id.)

III.        DISCUSSION

Plaintiff seeks a court order setting aside the dismissal of this action.

Dismissal was entered on July 8, 2022.  As this motion was filed on August 1, 2022, the motion is timely.

Plaintiff has demonstrated entitlement to relief pursuant to CCP section 473(b).  Plaintiff’s counsel declares that his office failed to properly calendar the hearings for this case, resulting in his failure to appear on July 8, 2022.  (Motion, Elmassian Decl., ¶ 3.)  This is sufficient to demonstrate that the dismissal was taken against Plaintiff due to Plaintiff’s counsel’s mistake, inadvertence, and neglect.

The Court notes that it does not appear Plaintiff has served Defendant with the summons and complaint.  Given it has been over a year since the complaint has been filed, Plaintiff is ordered to serve Defendant with the summons and complaint forthwith and file proof of service of the summons and complaint.

VI.     CONCLUSION

          In light of the foregoing, the motion to set aside dismissal is GRANTED.

          Plaintiff’s action is reinstated.  Trial is set for ______________ at 8:30 a.m. in Department 27.  Final Status Conference is set for _____________ at 10:00 a.m. in Department 27.

          Plaintiff is ordered to serve the summons and complaint on Defendant forthwith and file proof of service of such.  The Court sets an OSC re: service of summons and complaint for _______________.

Moving party to give notice. 

 

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.