Case Number: BC623184 Hearing Date: July 24, 2018 Dept: 3

MATTHEW BUZIECKI,

Plaintiff,

vs.

MARIO MACIAS, et al.

Defendants.

CASE NO: BC623184

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO SET ASIDE DISMISSAL, SETTNG OSC RE SANCTIONS ON PLAINTIFF AND COUNSEL

Dept. 3

1:30 p.m.

July 24, 2018

Plaintiff Matthew Buziecki (“plaintiff”) moves the court for an order, per CCP §§ 128 and 473, setting aside the December 11, 2017 dismissal of the above-captioned case based on his counsel’s failure to appear at trial.

Plaintiff’s motion is granted. “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…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.” CCP § 473(b).

Plaintiff’s counsel represents that he failed to appear for the scheduled December 11, 2017 trial because he had advised the court at the November 27, 2017 Final Status Conference that the complaint had not been served (i.e., as it was an uninsured motorist case that had not been settled). Plaintiff’s counsel mistakenly believed, at that time, that the court clerk took the trial date off calendar and scheduled an Order to Show Cause re: Service for February 8, 2018. Upon receipt of the dismissal, plaintiff’s counsel believed that the case could be settled before the six month period would run. Plaintiff’s counsel did not wish to unnecessarily burden the court docket.

The court finds that relief is mandatory. The motion is granted, and the case is ordered restored to the civil active list. The Court sets an OSC why sanctions should not be imposed on plaintiff and counsel for failure to serve the summons and complaint within 60 days as required by CRC 3.110(b) for 9/14/18 @ 8:30 am in Dept. 3. Any opposition shall be filed at least 5 days prior.