Case Number: BC635238 Hearing Date: June 11, 2018 Dept: 4

MOVING PARTY: Plaintiff Dr. Darlene Valiquette

RESPONDING PARTY: Defendant Bellflower Unified School District

Motion for an Order to Vacate and Set Aside Dismissal

The court considered the moving, opposition, and reply papers.

BACKGROUND

On September 23, 2016, plaintiff Dr. Darlene Valiquette filed a complaint against defendants Bellflower Unified School District for premises liability, negligent hiring, training, and supervision, and general negligence. Plaintiff alleges that on September 2, 2015, she went to Esther Lindstrom Elementary School to pick up her nephew’s stepchildren. Plaintiff was required to come to the classroom once the bell rang. The bell rang at about 1:35 p.m., at which time the children from the whole school charged the gate as a mob, creating a dangerous condition for the parents and responsible adults who were present. Plaintiff had gotten about 15 feet into the school when she was tripped as a proximate result of the children running without proper guidance and fell.

On March 9, 2018, there were no appearances at the Final Status Conference.

On March 23, 2018, no one appeared for the trial, and the court dismissed the case without prejudice pursuant to CCP §581(b)(3).

On April 9, 2018, plaintiff filed a proof of service of the summons and complaint.

LEGAL AUTHORITY

CCP § 473(b) states, in relevant part: “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

Pursuant to CCP §473(b), plaintiff requests that the court vacate the order dated March 23, 2018.

In his declaration, plaintiff’s counsel states that he is a solo practitioner and relies upon his office staff to provide accurate information. Paul Orloff Decl., ¶2. With regard to the present action, his legal secretary had failed to calendar this matter after the summons and complaint had been filed. He erroneously believed that the present action had been properly calendared. Id., ¶4. He states that he was mistaken about the case being calendared. He takes full responsibility. Id., ¶¶6, 10, 11.

In opposition, defendant argues that plaintiff’s neglect was not excusable and that plaintiff did not request mandatory relief and that such relief is unavailable.

The court finds that plaintiff’s request for relief under CCP §473(b) includes mandatory relief. The court also finds that plaintiff has met her burden of showing that the dismissal was caused by her attorney’s mistake, inadvertence, surprise, and/or excusable neglect. Relief is mandatory.

The motion is therefore GRANTED pursuant to CCP §473(b).

The court orders that the dismissal entered on March 23, 2018, is set aside.

The trial is set for October 15, 2018, at 8:30 a.m. in Dept. 4. The Final Status Conference is set for October 2, at 10:00 a.m. in Dept. 4.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 11, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court