“The court may, upon 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 neglect.” (Code of Civ. Proc., § 473(b); Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254-55.)
“Finding that when the Legislature incorporated dismissals into section 473, subdivision (b) it intended to reach only those dismissals which occur through failure to oppose a dismissal motion, the only dismissals which are procedurally equivalent to a default, courts have held the mandatory relief provision inapplicable to dismissals for failure to prosecute, dismissals for failure to serve a complaint within three years, dismissals based on running of the statute of limitations and voluntary dismissals entered pursuant to settlement.” (Leader v. Health Industries of America Inc (2001) 89 Cal.App.4th 603, 620.) Relief is available to plaintiffs because dismissal is the “practical equivalent of a default judgment.” (Aldrich v. San Fernando Valley Lumber Co., Inc. (1985) 170 Cal.App.3d 725.)
The purpose of this provision is to alleviate the hardship on parties who lose their day in court due solely to a failure to act on their attorney's part. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) “[T]he only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded. Neither inadvertence nor neglect will warrant judicial relief unless it may reasonably be classified as of the excusable variety upon a sufficient showing.” (Elms v. Elms (1946) 72 Cal.App.2d 508, 513.)
“As a general rule the accident or mistake authorizing relief may not be predicated upon the neglect of the party's attorney unless shown to be excusable because the negligence of the attorney in the premises is imputed to his client and may not be offered by the latter as a basis for relief. However, excepted from the rule are those instances where the attorney's neglect is of that extreme degree amounting to positive misconduct, and the person seeking relief is relatively free from negligence. The exception is premised upon the concept the attorney's conduct, in effect, obliterates the existence of the attorney-client relationship and for this reason his negligence should not be imputed to the client.” (Buckert v. Briggs (1971) 15 Cal.App.3d 296, 301.)
A mistake justifying relief may be a mistake of fact or a mistake of law; “A mistake of fact is when a person understands the facts to be other than they are; a mistake of law is when a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts.” (Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653, 656.) The mistake in either case must be material and excusable. (Conway v. Municipal Court (1980) 107 Cal.App.3d 1009, 1017.) Relief has been granted for failure to appear at trial due to the mistaken belief that continuance had been granted. (Nicol v. Davis (1928) 90 Cal.App. 337, 341.)
It is the moving party's burden to show the requisite mistake, inadvertence, surprise or excusable neglect. (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1478.) There is no longer a diligence requirement when mandatory relief is sought pursuant to an attorney affidavit of fault, meaning that as long as the motion is filed within the six-month period, there is no “reasonable time” inquiry. (Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 868.)
By its language, the statute only requires the affidavit be executed by an attorney who represents the client and whose mistake, inadvertence, surprise or neglect in fact caused the client's default or dismissal. (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 517.) In this sense, relief is mandatory in all but the rarest cases, where the court concludes the client, rather than the attorney, was the actual cause of the default, default judgment, or dismissal, and the attorney is simply attempting to ‘cover up’ for his or her client. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816; Rodrigues v. Super. Ct. (2005) 127 Cal.App.4th 1027, 1033.)
A motion seeking relief under section 473 lies within the sound discretion of the trial court, which must be exercised in a manner which will serve the spirit of the law and serve the ends of substantial justice. (Martin v. Cook (1977) 68 Cal.App.3d 799, 807.) Nonetheless, the law strongly favors trial and disposition on the merits, so any doubts in applying section 473 must be resolved in favor of the party seeking relief from a default. (Waite v. Southern Pac. Co. (1923) 192 Cal. 467, 470-471.) When the defaulting party moves promptly to seek relief and the opponent to such request has or will suffer little prejudice, very slight evidence is required to justify setting aside a default. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.)
“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
(Code of Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)
“This six-month time limitation is jurisdictional; the court has no power to grant relief under section 473 once the time has lapsed.” (Austin v. Los Angeles Unified School District (2016) 244 Cal.App.4th 918, 928.)
FILED: 08-21-18 NOTICE: OK DISMISSAL: 07-22-19 PROCEEDINGS: MOTION TO SET ASIDE DISMISSAL AND FOR ENTRY OF JUDGMENT MOVING PARTY: Plaintiff State Farm Mutual Automobile Insurance Company RESP. PARTY: None MOTION TO ENFORCE SETTLEMENT (CCP § 664.6) TENTATIVE RULING: Plaintiff State Farm Mutual Automobile Insurance Company’s Motion to Set Aside Dismissal and to Enter Judgment is GRANTED. Judgment to be entered in the amount of $10,765.67 against Defendant Kenny Molina.
Jan 26, 2021
Los Angeles County, CA
Plaintiff has not expressly brought its motion to vacate dismissal under Section 473(b). But Plaintiff has not brought it under any other specific authority, either. Plaintiff’s Notice of Motion does not identify any particular ground for vacating the dismissal or discuss in its supporting memorandum why the Court can or should do so.
Jan 25, 2021
Orange County, CA
TYKISHA STANFORD, an individual; ASIA STANFORD, an individual; ANTHONY STANFORD, an individual; THE SUITES, a California corporation; TRES FORTE, a California corporation; ROCKSTONE CONSTRUCTION MANAGEMENT, a California corporation; and DOES 1 – 100, inclusive, Defendants. ) ) ) ) ) ) ) CASE NO: LC106667 [TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO VACATE DISMISSAL Dept. U 8:30 a.m. January 25, 2021 I.
Jan 25, 2021
Los Angeles County, CA
Ruling: Plaintiff’s Motion to Vacate Dismissal and Enter Judgment is granted. Judgment shall be entered in favor of Plaintiff American Express Bank, FSB and against Defendant Brian Elliot, aka Brian Paul Elliot, aka Brian P. Elliot in the amount of $170,807.08. The Stipulation for Conditional Entry of Judgment provides for retained jurisdiction and indicates that it is conditional. (See ROA No. 25.)
Jan 25, 2021
Orange County, CA
This Motion to set aside dismissal was timely filed within six months of dismissal and the Court finds dismissal was due to counsel’s excusable neglect. The Motion to set aside the February 18, 2020 dismissal is GRANTED and the action is reinstated. Trial is set for October 13, 2021 in Department 27 at 8:30 a.m. and the final status conference is set for September 29, 2021 in Department 27 at 10:00 a.m. Moving party to give notice.
Jan 22, 2021
Los Angeles County, CA
Valle 16K08170 Plaintiff’s Motion to Set Aside Dismissal and Enter Judgment Pursuant to Code Civ. Proc. § 664.6 is GRANTED in part and DENIED in part. Judgment is entered in the amount of $450 plus $60 in costs. (Code Civ. Proc. § 664.6.) In the complaint, Plaintiff State Farm Mutual Automobile Insurance Co. (“State Farm”) brought a subrogation claim against Defendant Lazaro Albert Valle for $21,075.49. The parties entered into a settlement agreement and the court dismissed the case.
Jan 21, 2021
Los Angeles County, CA
FILED: 10-03-18 NOTICE: OK DISMISSAL: 03-04-20 PROCEEDINGS: MOTION TO VACATE DISMISSAL MOVING PARTY: Plaintiff State Farm Mutual Automobile Insurance Company RESP. PARTY: None MOTION TO SET ASIDE DISMISSAL (CCP § 473(b)) TENTATIVE RULING: Plaintiff State Farm Mutual Automobile Insurance Company’s Motion to Vacate Dismissal is GRANTED. The dismissal entered on March 4, 2020 is HEREBY VACATED.
Jan 21, 2021
Los Angeles County, CA
Conclusion Plaintiff A Plus Fabrics, Inc.’s Motion to Vacate Dismissal is DENIED. Court clerk to give notice.
Jan 20, 2021
Los Angeles County, CA
Isidro Valencia, et al. 19TRCV00245 Transpacific Industrial Supply, Inc.’s Motion to Set Aside Dismissal and to Enter Judgment Pursuant to the Terms of Settlement TENTATIVE RULING Transpacific Industrial Supply, Inc.’s Motion to Set Aside Dismissal and to Enter Judgment Pursuant to the Terms of Settlement is granted.
Jan 20, 2021
Collections
Collections
Los Angeles County, CA
Conclusion Plaintiffs Eddie Lopez and Catherine Gonzalez’s Motion to Set Aside Dismissal is GRANTED. THE DISMISSAL ENTERED ON FEBRUARY 18, 2020 IS VACATED. Moving party to give notice.
Jan 20, 2021
Los Angeles County, CA
On 8/10/20, Plaintiff filed the instant motion to set aside dismissal. Plaintiff asserts the dismissal was the result of Plaintiff’s counsel’s mistake, inadvertence, or excusable neglect. Motion to Set Aside Dismissal Mandatory Relief To the extent the motion is made pursuant to the mandatory provision of §473(b), Plaintiff cannot obtain relief under the mandatory provisions of Cal. Code Civ. Proc. §473(b) where an action is dismissed for failure to prosecute.
Jan 19, 2021
Los Angeles County, CA
VACATE DISMISSAL AND ENTER JUDGMENT PURSUANT TO STIPULATION (CCP § 664.6) TENTATIVE RULING: Plaintiff State Farm Mutual Automobile Insurance Company’s Motion to Vacate Dismissal and Enter Judgment Pursuant to Stipulation is GRANTED IN THE AMOUNT OF $6,280.00 PRINCIPAL AND $60.00 COSTS. ANALYSIS: Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed the instant action for automobile subrogation against Defendant Jason Gjelsvik (“Defendant”) on July 5, 2017.
Jan 19, 2021
Los Angeles County, CA
On 8/10/20, Plaintiff filed the instant motion to set aside dismissal. Plaintiff asserts the dismissal was the result of Plaintiff’s counsel’s mistake, inadvertence, or excusable neglect. Motion to Set Aside Dismissal Mandatory Relief To the extent the motion is made pursuant to the mandatory provision of §473(b), Plaintiff cannot obtain relief under the mandatory provisions of Cal. Code Civ. Proc. §473(b) where an action is dismissed for failure to prosecute.
Jan 19, 2021
Los Angeles County, CA
.: BC708504 Hearing Date: 1/19/2021 [TENTATIVE] RULING RE: Motion to Set Aside Dismissal The Motion to Set Aside Dismissal is continued to February 19, 2011. Plaintiff to file the proposed responsive documents within 10 days. Timely Filing A motion to set aside must be brought within 6 months; the requirement is jurisdictional. (CCP § 473(b); Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928; Davis v.
Jan 19, 2021
Contract
Breach
Los Angeles County, CA
FILED: 04-12-18 NOTICE: OK DISMISSAL: 02-13-20 PROCEEDINGS: MOTION FOR ORDER TO SET ASIDE DISMISSAL MOVING PARTY: Plaintiff Simon Resnik Hayes, LLP RESP. PARTY: None MOTION TO SET ASIDE DISMISSAL (CCP § 473(b)) TENTATIVE RULING: Plaintiff Simon Resnik Hayes, LLP’s Motion to Set Aside Dismissal is DENIED.
Jan 19, 2021
Los Angeles County, CA
Hernandez, et al VACATE DISMISSAL AND ENTER JUDGMENT PURSUANT TO STIPULATION (CCP § 664.6) TENTATIVE RULING: Plaintiff State Farm Mutual Automobile Insurance Company’s Motion to Vacate Dismissal and Enter Judgment Pursuant to Stipulation is GRANTED IN THE AMOUNT OF $6,207.39 PRINCIPAL AND $60.00 COSTS.
Jan 19, 2021
Los Angeles County, CA
VACATE DISMISSAL AND ENTER JUDGMENT PURSUANT TO STIPULATION (CCP § 664.6) TENTATIVE RULING: Plaintiff State Farm Mutual Automobile Insurance Company’s Motion to Vacate Dismissal and Enter Judgment Pursuant to Stipulation is GRANTED IN THE AMOUNT OF $5,464.12 PRINCIPAL AND $60.00 COSTS.
Jan 19, 2021
Los Angeles County, CA
To attend the remote hearing with Judge Kronlund in Dept. 10-D: Call into (209) 992-5590, then follow the prompts and use the Bridge # and Pin # as follows: Bridge # 6940 Pin # 3782 Tentative Ruling Plaintiff's motion to vacate dismissal and enter judgment is Granted. CCP section 664.6. No opposition filed. Court will sign the order and judgment submitted with this motion. Barbara A. Kronlund
Jan 15, 2021
San Joaquin County, CA
.: BC719781 Hearing Date: January 15, 2021 [TENTATIVE] order RE: motion to set aside and vacate dismissal BACKGROUND A. Allegations Plaintiffs Xin Zhang, Wanling Yuan, Feng Wu, Peiwen Guo, and Lan Zhou (“Plaintiffs”) are residents of the People’s Republic of China.
Jan 15, 2021
Personal Injury/ Tort
Fraud
Los Angeles County, CA
.: BC674817 Hearing Date: January 15, 2021 [TENTATIVE] order RE: plaintiff’s motion to set aside dismissal Plaintiff Felipe A. Reyes (“Plaintiff”) filed this action on September 5, 2017, following a motor vehicle collision with Defendant Jereme Armon Ware. On April 4, 2019, Plaintiff filed an applications seeking to serve Defendant by publication, which the Court rejected based upon numerous substantial and procedural defects.
Jan 15, 2021
Los Angeles County, CA
MOTION TO VACATE DISMISSAL (CCP §473) Date: 1/15/21 (8:30 AM) Case: Wells Fargo Bank, N.A. v. Aram Koulian (20GDCV00211) TENTATIVE RULING: Plaintiff Wells Fargo Bank, N.A.’s Motion to Vacate Dismissal is GRANTED pursuant to CCP § 473(b), based on counsel for plaintiff’s mistake and neglect. Dismissal of the action entered on September 28, 2020 is set aside.
Jan 15, 2021
Collections
Collections
Los Angeles County, CA
.: 19STCV12609 Hearing Date: 1/15/2021 [TENTATIVE] RULING RE: Motion to Set Aside Dismissal The motion is continued to February 18, 2021. Plaintiff is ordered to file proof of service of the motion and this Order within 15 days for the continued hearing date. Legal Standard A trial court has broad discretion to vacate the judgment and/or the clerk’s entry of default that preceded it. (CCP § 473.)
Jan 15, 2021
Employment
Other Employment
Los Angeles County, CA
MOTION TO VACATE DISMISSAL (CCP § 473(b)) TENTATIVE RULING: Plaintiff David Rosenman’s Motion to Vacate Dismissal is CONTINUED TO MARCH 11, 2021 AT 10:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. ANALYSIS: On July 13, 2016, Plaintiff David Rosenman (“Plaintiff”) filed the instant action against Defendants Andreas Elsenhaus (“Defendant Elsenhaus”) and Lion Interior Design, Inc. (“Defendant Lion Interior”). The Court entered Defendant Elsenhaus’ default on February 22, 2017.
Jan 14, 2021
Los Angeles County, CA
.: BC619189 [TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO SET ASIDE DISMISSAL Dept. 27 8:30 a.m. January 14, 2021 On May 5, 2016, Plaintiff Michaela Sheppard filed this action against Defendants Century Transportation Services and West Coast Ambulance, Inc. On August 6, 2018, the Court approved an application for determination of good faith settlement between Plaintiff and Defendant West Coast Ambulance, Inc.
Jan 14, 2021
Los Angeles County, CA
MOTION TO VACATE DISMISSAL (CCP § 473(b)) TENTATIVE RULING: Plaintiff David Rosenman’s Motion to Vacate Dismissal is CONTINUED TO MARCH 11, 2021 AT 10:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. ANALYSIS: On July 13, 2016, Plaintiff David Rosenman (“Plaintiff”) filed the instant action against Defendants Andreas Elsenhaus (“Defendant Elsenhaus”) and Lion Interior Design, Inc. (“Defendant Lion Interior”). The Court entered Defendant Elsenhaus’ default on February 22, 2017.
Jan 14, 2021
Los Angeles County, CA
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