Case Number: BC650847 Hearing Date: May 14, 2019 Dept: 4A

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.)

Motion to Set Aside Dismissal

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

BACKGROUND

On February 16, 2017, Plaintiff¿Blanca Avalos (“Plaintiff”) filed a complaint against Defendant Jeffrey K. Chu (“Defendant”) alleging motor vehicle negligence for an automobile collision that occurred on February 17, 2015.¿

On August 16, 2018, the Court dismissed this case without prejudice because the parties failed to appear at the final status conference and trial.

On February 19, 2019, Plaintiff filed a motion to set aside the August 16, 2018 dismissal due to her counsel’s mistake, inadvertence, surprise, or neglect.

PARTY’S REQUEST

Plaintiff requests that the Court set aside the August 16, 2018 dismissal a pursuant to California Code of Civil Procedure section 473, subdivision (b).

LEGAL STANDARD

California Code of Civil Procedure section 473(b) states: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a . . . dismissal . . . 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 . . . 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 (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. . . .”

DISCUSSION

Plaintiff’s counsel declares that he incorrectly believed that there was no final status conference date or trial date assigned, and as a result, did not calendar the final status conference date or trial date. (Varga Decl., ¶ 2.)

The Court finds that the motion for relief was timely filed and that Plaintiff’s counsel’s declaration is satisfactory. Plaintiff’s counsel has admitted that the dismissal was due to counsel’s neglect. As such, relief from the dismissal is mandatory.

Plaintiff’s motion is GRANTED.

The Court vacates the August 16, 2018 dismissal.

The Court orders an OSC Re: dismissal for a failure to serve summons and complaint to be scheduled for July 5, 2019 at 8:30 a.m. in Department 4A at Spring Street Courthouse, 312 North Spring Street, Los Angeles, California 90012.

Plaintiff is ordered to give notice.