MOTHERSHED, KATHRYN VS SIX FLAGS MAGIC MOUNTAIN INC

Tentative Rulings

Case Number: 17K07318    Hearing Date: November 19, 2019    Dept: 94

MOTION TO VACATE DISMISSAL

(CCP § 473(b), mandatory)

TENTATIVE RULING:

Plaintiff Kathryn Mothershed’s Motion to Vacate Dismissal is GRANTED.

ANALYSIS:

I. Background

On June 13, 2017, Plaintiff Kathryn Mothershed (“Plaintiff”) brought this premises liability action against Defendant Six Flags Magic Mountain, Inc. (“Defendant”). Because Plaintiff failed to appear for an OSC Hearing re: Proof of Service / Dismissal on August 21, 2019, the Court dismissed this action. Eight days later, Plaintiff’s counsel realized he made a mistake in failing to appear for the OSC Hearing and brought the instant Motion to Vacate Dismissal (the “Motion”) under the mandatory provision of CCP § 473(b).

II. Legal Standard

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) Plaintiff seeks relief under the mandatory provision of the statute based on its counsel’s mistake, inadvertence, surprise, or neglect. The mandatory provision states in pertinent part:

“[W]henever 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.”

(CCP § 473(b).)

“The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys. [Citation.]” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723, emphasis added.) Relief under CCP § 473(b) is also available to plaintiffs because dismissal is the “practical equivalent of a default judgment.” (Aldrich v. San Fernando Valley Lumber Co., Inc.

III. Analysis

A. Merits of Motion

Plaintiff timely brought this Motion under the mandatory provision of CCP § 473(b) less than six months after the dismissal.

Plaintiff submits a sworn affidavit from its counsel Rafael Carrillo (“Carrillo”), who attests that he miscalendared the date of the OSC Hearing and, as a result, did not appear for the hearing. (Motion, Carrillo Decl. p. 2.) “[A]s this text [of the mandatory provision of Section 473(b)] indicates, what must be attested to is the mistake, inadvertence, surprise, or neglect—not the reasons for it. [Citation.]” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.) In light of the foregoing, the Court finds that the dismissal was a result of Plaintiff’s attorney’s mistake, inadvertence, surprise, and neglect. Accordingly, the Court has no discretion but to grant the Motion under the mandatory provision of Section 473(b).

IV. Conclusion & Order

The unopposed Motion is GRANTED. The dismissal of this action is hereby VACATED.

Trial is set for MAY 19, 2020 at 8:30 a.m. in Department 94. All discovery cut-off dates follow the new trial date.

Moving party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.