PAUL JAMES TODD VS CARLOS ANTONIO CAPISTRAN ET AL

Motion to Set Aside Dismissal

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On November 2, 2017, Plaintiff Paul James Todd (“Plaintiff”) filed a complaint against Defendants Carlos Antonio Capistran and Jose Bonilla (“Defendants”) alleging motor vehicle and general negligence for an automobile collision that occurred on November 9, 2015.

On May 2, 2019, the Court dismissed the complaint without prejudice because no one appeared for trial or communicated with the Court as to why there were no appearances made at trial.

On November 4, 2019, Plaintiff filed a motion to set aside the May 2, 2019 dismissal pursuant to California Code of Civil Procedure section 473, subdivision (b).

PARTY’S REQUEST

Plaintiff asks the Court to set aside the May 2, 2019 dismissal on the grounds that Plaintiff’s counsel failed to calendar the trial date.

LEGAL STANDARD

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[n] . . . other proceeding 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 . . . other proceeding was taken. . . .” 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).)

DISCUSSION

The Court finds this motion is timely.  November 2, 2019 is was a Saturday, making November 4, 2019 the deadline to file this motion.

However, Plaintiff has not filed a proof of service of the motion on Defendants.  The Court cannot ascertain whether Defendants have notice of this motion, since they failed to file any opposition.  It is in the interest of justice to continue the hearing on this motion to enable Defendants to oppose the motion.

Plaintiff’s motion is CONTINUED to January 21, 2019 at 1:30 p.m. in Department 4A at Spring Street Courthouse located at 312 North Spring Street, Los Angeles, California 90012.

Plaintiff is ordered to serve by the moving papers on Defendants by December 26, 2019, if by personal service, or by December 20, 20119, if by mail, pursuant to California Code of Civil Procedure section 1005, subdivision (b).

Defendants may file opposing papers and Plaintiff may file replying papers pursuant to California Code of Civil Procedure section 1005, subdivision (b) based on the new January 21, 2019 hearing date.

Plaintiff is ordered to give notice of this ruling.