Case Number: 16K11679 Hearing Date: June 06, 2018 Dept: 94

Plaintiff Jose Carmen Hernandez’s Motion to Vacate Dismissal is GRANTED. The dismissal entered on March 19, 2018 is hereby vacated under CCP § 473(b). Trial is set for September 12, 2018, at 8:30 a.m. in Department 94.

On September 19, 2016, Plaintiff Jose Carmen Hernandez (“Plaintiff”) filed this action against Defendant Aramis Gordillo Soto. On March 19, 2018, the Court dismissed this action without prejudice because Plaintiff failed to appear at trial. On May 3, 2018, Plaintiff filed a Motion to Vacate Dismissal (the “Motion”).

Legal Standard

CCP § 473(b) states in pertinent part: “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.”

Relief under CCP § 473(b) is also available to plaintiffs because dismissal is the “practical equivalent of a default judgment.” (Aldrich v. San Fernando Valley Lumber Co., Inc. (1985) 170 Ca.3d 725.)

Discussion

Plaintiff filed his Motion on May 3, 2018, which is less than a month from the date of the dismissal on March 19, 2018. Therefore, the Motion is timely under to CCP § 473(b).

Plaintiff submits a sworn declaration from its attorney, Gilbert Saucedo (“Saucedo”), stating that he neglected to calendar the trial date. (Saucedo Decl. ¶ 3.) As a result, he failed to appear for the trial on March 19, 2018. (Id. ¶ 4.)

“When the moving party promptly seeks relief and there is no prejudice to the opposing party, very slight evidence is required to justify relief.” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1343.) Based on the declaration, the Court finds that the dismissal of this action was a result of Plaintiff’s attorney’s mistake, inadvertence, surprise, or neglect. Further, Plaintiff promptly filed the instant Motion less than two months from the date of the dismissal. Defendant has not filed an opposition to argue what prejudice he would suffer if this Motion is granted, and the Court cannot discern any prejudice affecting Defendant. Accordingly, the unopposed Motion is GRANTED and the dismissal is hereby vacated under CCP § 473(b). Trial is set for September 12, 2018, at 8:30 a.m. in Department 94.

Moving party to give notice.