RAFAEL GOMEZ VS LOS ANGELES COUNTY METROPOLITAN TRANSPORTATI

Tentative Rulings

Case Number: BC632062    Hearing Date: November 01, 2019    Dept: 4A

Motion to Set Aside Dismissal Pursuant to C.C.P. §473(b)

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On August 29, 2016, Plaintiff Rafael Gomez (“Plaintiff”) filed a complaint against Defendants Los Angeles County Metropolitan Transportation Authority, Metrolink, Southern California Regional Rail Authority, and DOES 1 to 50, asserting a cause of action for motor vehicle.

On October 26, 2016, Defendant Los Angeles County Metropolitan Transportation Authority dba Metro (“Defendant”) filed an answer to the complaint.

On October 28, 2016, Plaintiff filed a Request for Dismissal, dismissing Defendants Metrolink and Southern California Regional Rail Authority.

On October 9, 2018, Defendant filed a Notice of Settlement of Entire Action.

On July 29, 2019, the Court dismissed Plaintiff’s complaint with prejudice.

PARTY’S REQUEST

Plaintiff moves for an order setting aside dismissal of the instant action.

LEGAL STANDARD

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

Under C.C.P. §473(b)’s attorney affidavit provision set forth above, “a party is relieved from the consequences of his or her attorney's mistake, inadvertence, surprise, or neglect. Relief is available regardless of whether the attorney's neglect is excusable. [Citations] Moreover, if the requirements of this provision are met, then relief is mandatory. [Citations]” (Lorenz v. Commercial Acceptance Insurance Company (1995) 40 Cal.App.4^th 981, 989.)

DISCUSSION

Plaintiff Rafael Gomez (“Plaintiff”) moves for an order setting aside dismissal of the instant action, pursuant to C.C.P. §473(b).

On July 29, 2019, the court dismissed the instant action with prejudice after Plaintiff failed to appear for the OSC Re: Dismissal After Settlement. (Court’s 7/29/19 Minute Order.)

Relief from dismissal is mandatory under C.C.P. §473(b). Plaintiff filed the instant motion on September 20, 2019, less than two months after dismissal of the action. Plaintiff’s motion is accompanied by an attorney affidavit of fault. Plaintiff’s counsel, Allan Dollison, declared “Plaintiff’s counsel’s office failed to appear at the Order to Show Cause hearing on July 29, 2019 due to an internal office calendaring issue and no hearing date was placed on the office calendar. As a result, Plaintiff’s counsel’s office did not appear at the OSC hearing of July 29, 2019 and the court dismissed the case with prejudice.” (Declaration of Dollison ¶12.) Dollison declared that, due to the calendaring error, the July 29, 2019 hearing was not put on the calendar, “the handling attorney was unaware of the scheduled hearing date, and on July 29, 2019, no appearance was made by Plaintiff’s counsel.” (Declaration of Dollison ¶13.)

In opposition, Defendant appears to argue the dismissal should not be set aside because the matter settled over a year ago and Plaintiff has not signed the settlement documents. However, the issue before the Court is whether the dismissal should be set aside. As discussed above, relief from dismissal is mandatory.

Based on the foregoing, Plaintiff’s motion to set aside the dismissal entered on July 29, 2019 is GRANTED.

Plaintiff is ordered to give notice of the Court’s ruling.