XIAO HUA WAN VS BIN ZHANG ET AL

Tentative Rulings

Case Number: ****3633    Hearing Date: November 12, 2019    Dept: 4B

[TENTATIVE] ORDER RE: MOTION TO VACATE DISMISSAL

On March 7, 2017, plaintiff Xiao Hua Wan (“Plaintiff”) filed this action against defendants Bin Zhang and De Ozark Group, Inc. for injuries arising from a workplace altercation. The defendants were served on November 27, 2018 and December 3, 2018. The Court rejected Plaintiff’s default package on May 1, 2019 and set an OSC re dismissal for July 29, 2019. Plaintiff failed to appear, and the Court dismissed the case. Plaintiff now moves to vacate the dismissal entered on July 29, 2019.

“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. (Ibid.) “[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.” (Ibid.)

Plaintiff’s counsel states he made a calendaring error causing him to now appear at the July 29, 2019 OSC hearing. Plaintiff timely filed this Motion within six months of dismissal, and the Court finds dismissal was due to counsel’s excusable neglect. The Motion to set aside the July 29, 2019 dismissal is GRANTED and the action is reinstated. The Court sets an OSC Re: Entry of Default and Default Judgment for January 14, 2020 at 8:30 a.m.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.