MAGALI MAURICIO VS JOSE ANTONIO BARRIGA RAMOS

Motion to Set Aside Dismissal

Having considered the moving papers, the Court rules as follows.  No opposition was filed.

BACKGROUND

On October 26, 2017, Plaintiff Magali Mauricio (“Plaintiff”) filed a complaint against Defendant Jose Antonio Barriga Ramos (“Defendant”) for motor vehicle and general negligence arising from a motor vehicle accident that occurred on November 2, 2015.

On April 26, 2019, after finding no appearances by parties for either side at the jury trial, the Court dismissed this action without prejudice.

On October 1, 2019, Plaintiff filed the instant motion to set aside dismissal.  No opposition was filed.

PARTY’S REQUESTS

Plaintiff requests relief from the order dismissing the action on April 26, 2019 and to reinstate this action.

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.)

DISCUSSION

Plaintiff moves to set aside the dismissal entered on April 26, 2019 pursuant to Code of Civil Procedure section 473(b) based on the attorney’s mistake, inadvertence, surprise, or excusable neglect.

The Court finds that the motion was timely filed within six months of the dismissal as dismissal was entered on April 26, 2019 and this motion was filed on October 1, 2019.

The Court also finds that Plaintiff has demonstrated entitlement to relief pursuant to Code of Civil Procedure he encountered some serious health issues in the latter part of 2018 and had to take some time off from work.  (Ekine Decl., ¶ 6.)  Counsel states that he routinely settles cases such as this one with third-party insurance companies and that he had directed his assistant to resolve the pending personal injury cases with the respective insurance carriers.  (Id.)  The assistant subsequently learned that Defendant’s insurance company had gone out of business and inadvertently misfiled the folder for this case in the “Settled” file cabinet at the office.  (Id.)  Counsel states that he did not discover this mistake until it was too late to save the case and takes responsibility for the mistake.  (Id.)

The Court notes that it does not appear that Plaintiff has served Defendant with the summons and complaint.  Given it has been over two years 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.

Based on the foregoing, Plaintiff’s motion to set aside the dismissal is GRANTED and the action is reinstated.  Trial is set for April 15, 2020 at 8:30 a.m. in Department 4A and the Final Status Conference is set for April 1, 2020 at 10:00 a.m. in Department 4A.

Plaintiff is ordered to serve the summons and complaint on Defendant forthwith.  The Court sets an OSC re: service of summons and complaint for November 13, 2020.

Plaintiff is ordered to give notice of this ruling.