CIV 516484 AMOS FINANCIAL LLC VS. MASSIMO L. CAVALLARO, ET AL.

AMOS FINANCIAL LLC NICHOLAS C. VALMES

MASSIMO L. CAVALLARO DOMINICK R. LIBONATI

MOTION TO VACATE DISMISSAL BY AMOS FINANCIAL LLC

· The motion to vacate the dismissal is granted. While the Court finds Defendant’s argument quite persuasive, it appears that vacating the dismissal in this situation is mandatory. The declarations of Plaintiff’s attorneys establish that the dismissal was entered as a result of their mistake or inadvertence. The declaration of Attorney Torres states that she appeared on behalf of the attorney of record, Mr. Valmes, but went to the wrong courtroom. As such, this is an earnest mistake which the Court is not free to overlook. Even though her declaration remains silent as to whether or not she ever went to the trial department, her mistake is one which warrants granting the relief. The statute does not speak of “excusable mistake” but rather “excusable neglect.”

· Mr. Valmes’ declaration is full of mistakes, as is his opposition, and it demonstrates that he was rather careless in monitoring the progress of this matter. However, that is not sufficient to deny the request. His inattention coupled with the genuine mistake of Ms. Torres is enough to dictate that the dismissal should be vacated. While the defendant opines as to the motivations of Mr. Korogluyan, real party in interest, in remaining silent while the Presiding Judge called the matter for trial, such inference is not something which the Court can now adopt, irrespective of how reasonable it may be, for it is nothing more than mere speculation.

· The Court does find it disconcerting however that the attorney of record for the plaintiff, Mr. Valmes, was dilatory in his responsibility to his client and the Court in failing to adequately prepare for the trial date, for by his own declaration he not only did not know where to send an attorney to appear for him, but fails to establish why he wasn’t there himself, or what efforts if any he made to ensure his client and Ms. Torres, an attorney who does not normally work for him but was only making a special appearance, were in the proper courtroom. As such, pursuant to CCP § 473(c)(1)(A), the Court imposed upon attorney Valmes a penalty of $500.00 to be paid directly to the Superior Court Clerk’s office on or before July 17, 2014.

· The new date for court trial is September 8, 2014.

· If the tentative ruling is uncontested, it shall become the order of the Court. The moving party shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.