Judge: Yolanda Orozco, Case: 20STCV29348, Date: 2022-10-21 Tentative Ruling
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Case Number: 20STCV29348 Hearing Date: October 21, 2022 Dept: 31
MOTION TO SET ASIDE/VACATE DISMISSAL IS GRANTED
Background
On August 08, 2020, Plaintiff Sofia Arenas filed a Complaint against Antonio Llanos, Marina Avila (“Defendants”), and Does 1 to 10 for Partition of Real Property by Sale.
Plaintiff and Defendants acquired the subject real property as joint tenants with an undivided one-third (1/3) interest. Plaintiff has filed a Complaint for Partition by Sale of Real Property.
On November 04, 2021, a Notice of Settlement was filed.
On February 10, 2022, an Order of Dismissal was filed.
On June 13, 2022, Plaintiff filed a Motion to Set Aside and Vacate the Dismissal and Lave to Defend the Action.
Defendants filed an opposition on July 13, 2022. No reply was filed.
On September 26, 2022, the hearing was continued to allow
Plaintiff to file an amended proof of service.
Legal Standard
California Code of Civil
Procedure section 473 subdivision (b) provides for both discretionary and
mandatory relief. (See Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th
298, 302.) Mandatory relief from default, default judgment, or dismissal is
available based on an attorney’s sworn affidavit attesting to his or her mistake,
inadvertence, surprise, or neglect. (Minick v. City of Petaluma (2016) 3
Cal.App.5th 15, 25-26.) Discretionary relief is available based on the party’s
own declaration or other evidence showing mistake, inadvertence, surprise, or
excusable neglect. (Id.)
Under the discretionary relief
provision, the application for 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.”
(Code Civ. Proc., § 473 subd. (b).)
Discussion
Previously, this Court found that Plaintiff had provided a sufficient explanation attesting to his “mistake, inadvertence, surprise, or excusable neglect” regarding the settlement between the parties. (Min. Or. 08/30/22)
At the previous hearing, counsel submitted an additional declaration to show that the section 473 motion was brought “within a reasonable time.” (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 528.) This Court found the explanation sufficient but due to deficiencies in the proof of service, the hearing was continued to allow Plaintiff to file an amended proof of service. (Min. Or. 09/26/22.)
Defendant has filed a supplemental response asserting again that Plaintiff’s motion was not made within a reasonable time. The Court disagrees. Per Plaintiff’s counsel’s declaration, the basis for this instant motion was not based on the January 19, 2022 correspondence with Defendants, but on an offer made by Defendants in June of 2022, whereby Defendants’ offered less than what the parties had agreed to in January 2022. (Casa Jr. Decl. Ex. 2.)
Based on the foregoing, Plaintiff’s Motion to Set Aside and Vacate the Dismissal and Leave to Defend the Action is GRANTED.
Conclusion
Plaintiff to give notice.