On 02/06/2018 a Personal Injury - Other Personal Injury case was filed by EDNA B FULLER against FOOD 4 LESS OF CALIFORNIA INC in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
FULLER EDNA B.
FOOD 4 LESS OF CALIFORNIA INC
DOES 1 TO 50
2/6/2018: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
2/6/2018: ORDER ON COURT FEE WAIVER
Complaint; Filed by Edna B. Fuller (Plaintiff)Read MoreRead Less
Order on Court Fee Waiver (Superior Court); Filed by Edna B. Fuller (Plaintiff)Read MoreRead Less
Request to Waive Court Fees; Filed by Edna B. Fuller (Plaintiff)Read MoreRead Less
Summons; Filed by Edna B. Fuller (Plaintiff)Read MoreRead Less
COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
ORDER ON COURT FEE WAIVERRead MoreRead Less
SUMMONSRead MoreRead Less
Request-Waive Court FeesRead MoreRead Less
Request to Waive Court FeesRead MoreRead Less
Case Number: BC693083 Hearing Date: November 05, 2019 Dept: 4A
Motion to Set Aside Dismissal
Having considered the moving and opposing papers, the Court rules as follows. No reply papers were filed.
On February 6, 2018, Plaintiff Edna B. Fuller (“Plaintiff”) filed a complaint against Defendant Alpha Beta Company d.b.a. Food 4 Less (“Defendant”) alleging negligence and premises liability for an incident that occurred on February 8, 2016.
On August 6, 2019, the Court dismissed the complaint due to the parties’ failure to appear for trial and communicate with the Court as to why there were no appearances.
On September 30, 2019, Plaintiff filed a motion to set aside the August 6, 2019 dismissal pursuant to California Code of Civil Procedure section 473, subdivision (b).
Plaintiff asks the Court to set aside the August 6, 2019 dismissal on the ground that Plaintiff’s counsel’s law clerk failed to calendar trial causing Plaintiff’s counsel to fail to appear for trial.
California Code of Civil Procedure section 473, subdivision (b) states: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a . . . dismissal . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the . . . dismissal . . . . 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. . . .”
Relief is mandatory when an attorney files the required affidavit, even if the attorney's neglect was inexcusable. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 401 (setting aside a default entered when the attorney failed to file an answer).) No reason need be given for the existence of one of these circumstances and attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these reasons. (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660.)
“The court shall, whenever relief is granted based on attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc. § 473, subd. (b).)
Plaintiff’s counsel declares that his law clerk, Lance, failed to calendar trial, which caused Plaintiff’s counsel to not appear at trial and this action be dismissed. (Falese Decl., ¶¶ 2, 4.) Defendant argues relief cannot be granted on a discretionary ground because Plaintiff’s counsel has delayed in pursuing the matters in this case, such as by failing to serve Defendant with the complaint for a year and a half and failing to file this motion for two months.
Defendant fails to address the mandatory relief provision within California Code of Civil Procedure section 473, subdivision (b). Considering the standards under this provision, the Court finds Plaintiff’s counsel’s declaration of fault is sufficient to show mistake or neglect by Plaintiff’s attorney. As a result, relief from the August 6, 2019 dismissal is mandatory.
Plaintiff’s motion is GRANTED.
The Court sets aside the August 6, 2019 dismissal, and schedules a Trial Setting Conference for December 5, 2019 at 8:30 a.m. in Department 4A.
Plaintiff is ordered to give notice of this ruling.