Case Number: BC549687 Hearing Date: June 08, 2018 Dept: 7

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO SET ASIDE DISMISSAL; MOTION GRANTED

On June 24, 2014, Plaintiff Jack Carrillo (“Plaintiff”) filed this action against Defendants Payless Foods, Inc., Payless Foods Store No. 10, and Sergio, last name unknown (collectively, “Defendants”) for personal injuries sustained in a June 25, 2012 slip and fall incident.

On April 26, 2018, Plaintiff’s counsel failed to appear for an OSC re: default judgment and the Court dismissed the action without prejudice. (Declaration of Sandeep G. Agarwal, ¶ 2.) Plaintiff moves to set aside dismissal on grounds of attorney mistake, inadvertence, or excusable neglect. Counsel states he inadvertently looked at the wrong date on his calendar, did not realize the matter was on calendar, and realized his mistake around 10:00 a.m. the morning of the hearing. Counsel states the mistake was entirely his own. (Agarwal Decl., ¶ 3.)

“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 of 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. (Code of Civ. Proc., § 473, subd. (b).) “[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.” (Code of Civ. Proc., § 473, subd. (b).)

The Court finds this Motion to set aside dismissal was timely filed and counsel’s failure to appear on the date of the OSC was the result of counsel’s mistake and excusable neglect. The Motion to set aside dismissal is GRANTED and this action is reinstated to the active calendar.

The dismissal entered on April 26, 2018 is vacated. The Court sets an OSC re: default judgment and an OSC re: dismissal for failure to file a proof of service for August 28, 2018, at 8:30 a.m. in Department 7. Plaintiff’s counsel must submit a new default judgment packet in compliance with the Court’s December 19, 2017 Order. Failure to appear at this hearing or to file appropriate documents with the Court may result in the case being dismissed.

Trial in this matter is set for September 26, 2018 at 8:30 a.m. in Department 7. The final status conference is set for September 12, 2018 at 10:00 a.m. in Department 7.

Moving party to give notice.