Case Number: BC678481 Hearing Date: August 20, 2019 Dept: 4A

Motion to Vacate and Set Aside Order of Dismissal

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

BACKGROUND

On October 5, 2017, Plaintiff Epaenetus Bostick (“Plaintiff”) filed a complaint against Defendants Kimberly Sanders, Sarah Morgan, Charles William Anderson, and Does 1 through 50 for (1) motor vehicle negligence, negligent entrustment, negligent hiring, negligent undertaking, negligent retention, negligent supervision, and negligent training and (2) negligence per se.

On April 5, 2019, after finding no appearances for either side at the trial, the Court dismissed the complaint without prejudice pursuant to CCP section 581(b)(3).

On July 24, 2019, Plaintiff filed the instant motion to vacate and set aside the dismissal.

PARTY’S REQUESTS

Plaintiff requests relief from the order dismissing the action on April 5, 2019 and to reinstate this action.

LEGAL STANDARD

“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. (Id.) “[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.” (Id.)

DISCUSSION

Plaintiff moves to set aside the dismissal entered on April 5, 2019 pursuant to CCP section 473(b) based on attorney mistake, inadvertence, and excusable neglect.

The Court finds that the motion was timely filed within six months of the dismissal as dismissal was entered on April 5, 2019 and this motion was filed on July 24, 2019.

The Court also finds that Plaintiff has demonstrated entitlement to relief pursuant to CCP section 473(b). Plaintiff’s counsel states that he is dependent upon his office calendaring system to apprise him of when he must appear for hearings and trials. (Khakshooy Decl., ¶ 4.) Plaintiff’s counsel states that he failed to appear at the April 5, 2019 trial because the trial date was never calendared in his system, although he is unaware as to precisely why. (Id.) Plaintiff’s counsel states that his client had no involvement with his calendaring system or his failure to appear at the trial. (Id., ¶¶ 3-4.) This is sufficient to demonstrate that the dismissal was taken against Plaintiff due to Plaintiff’s counsel’s mistake, inadvertence, and excusable neglect.

The Court notes that it does not appear Plaintiff has served defendants with the summons and complaint. Given it has been almost two years since the complaint was filed, Plaintiff is ordered to serve defendants with the summons and complaint forthwith and file proofs of service of the summons and complaint.

Based on the foregoing, Plaintiff’s motion to vacate and set aside the dismissal is GRANTED and the action is reinstated. Trial is set for February 12, 2020 at 8:30 a.m. in Department 4A and the Final Status Conference is set for January 29, 2020 at 10:00 a.m. in Department 4A.

Plaintiff is ordered to serve the summons and complaint on defendants forthwith. The Court sets an OSC re: service of summons and complaint for November 6, 2019.

Plaintiff is ordered to give notice of this ruling.