SHEMEKA JORDAN, AN INDIVIDUAL, ET AL. VS WALTER FERNANDO MOYA, AN INDIVIDUAL, ET AL.

Tentative Rulings

Case Number: 20STCV39008 Hearing Date: May 23, 2023 Dept: 29

TENTATIVE

Plaintiff Shemeka Jordan’s Motion to Set Aside the Dismissal is GRANTED.

Legal Standard

Code of Civil Procedure 473(b) provides for mandatory and discretionary relief from dismissal. “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 through his or her mistake, inadvertence, surprise, or excusable neglect.” CCP 473(b). Where such an application for discretionary relief is made, the motion shall be accompanied by a copy of the answer or pleading proposed to be filed, or the application will not be granted. (Id.) The court must grant relief from dismissal where the application is accompanied by an attorney affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. (Id.) In either case, the application must be made within a reasonable time, and in no case exceeding six months after the judgment. (Id.)

Discussion

The motion is timely filed under C.C.P. 473(b). The action was dismissed on October 10, 2022. This Motion to Set Aside the Dismissal was filed on November 1, 2022, within six months after dismissal was entered.

The trial court’s granting or denial of relief under this provision is reviewed for abuse of discretion. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) It is noted that appellate courts are traditionally “favorably disposed toward such action on the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies on their merits.” (Mercantile Collection Bureau v. Pinheiro (1948) 84 Cal.App.2d 606, 608, citing Benjamin v. Dalmo Mfg. Co. (1947) 31 Cal.2d 523.)

Plaintiff moves for relief on the ground that dismissal was entered due to the mistake, inadvertence, or neglect of Plaintiff’s counsel. On October 10, 2022, the Court dismissed the entire action without prejudice for lack of prosecution pursuant to C.C.P. Sections 583.410 and 583.420(a)(1) when no party appeared for Order to Show Cause Re: Dismissal for Failure to file proof of service. Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting that the hearing date was never entered in the firm calendar. The mistake was discovered when notice of the dismissal was served by the Clerk. (Fradklin Decl., 5-8.)

Because Plaintiff’s counsel has sufficiently established mistake, inadvertence or neglect the dismissal must be set aside.

Conclusion

Accordingly, Plaintiff’s Motion to Set Aside the Dismissal is GRANTED.

Moving party is ordered to give notice.

Case Number: 20STCV39008 Hearing Date: July 6, 2022 Dept: 29

TENTATIVE

Plaintiff Shemeka Jordan’s Motion to Set Aside the Dismissal is GRANTED.

Legal Standard

Code of Civil Procedure 473(b) provides for mandatory and discretionary relief from dismissal. “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 through his or her mistake, inadvertence, surprise, or excusable neglect.” CCP 473(b). Where such an application for discretionary relief is made, the motion shall be accompanied by a copy of the answer or pleading proposed to be filed, or the application will not be granted. (Id.) The court must grant relief from dismissal where the application is accompanied by an attorney affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. (Id.) In either case, the application must be made within a reasonable time, and in no case exceeding six months after the judgment. (Id.)

Discussion

The motion is timely filed under C.C.P. 473(b). The action was dismissed on April 8, 2022. This Motion to Set Aside the Dismissal was filed on April 21, 2022, within six months after dismissal was entered.

The trial court’s granting or denial of relief under this provision is reviewed for abuse of discretion. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) It is noted that appellate courts are traditionally “favorably disposed toward such action on the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies on their merits.” (Mercantile Collection Bureau v. Pinheiro (1948) 84 Cal.App.2d 606, 608, citing Benjamin v. Dalmo Mfg. Co. (1947) 31 Cal.2d 523.)

Plaintiff moves for relief on the ground that dismissal was entered due to the mistake, inadvertence, or neglect of Plaintiff’s counsel. On April 8, 2022, the Court dismissed the entire action without prejudice for lack of prosecution pursuant to C.C.P. Section 581(b)(3) when Plaintiff did not appear for non-jury trial. Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting that the Final Status Conference and Trial dates were never entered in the firm calendar. The mistake was discovered when notice of the dismissal was served by the Clerk. (Fradklin Decl., 5-8.)

Because Plaintiff’s counsel has sufficiently established mistake, inadvertence or neglect the dismissal must be set aside. Pursuant to CCP 473(c)(1)(B), Plaintiff's counsel is ordered to pay $500 to the State Bar Client Security Fund within 30 days of this order. Proceedings are reinstated. Matter is set for OSC Re:Dismissal for Failure to file proof of service on the two year date, October 10, 2022 at 8:30 a.m. in Department 29 of the Spring Street Courthouse.

Conclusion

Accordingly, Plaintiff’s Motion to Set Aside the Dismissal is GRANTED.

Moving party is ordered to give notice.