Case Number: BC606641 Hearing Date: June 05, 2018 Dept: 7

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

On January 11, 2016, Plaintiff Robert Soto (“Plaintiff”) filed this action against Defendants Montebello Bus Lines, City of Montebello, County of Los Angeles, Los Angeles County Metropolitan Transportation Authority, and Doe Bus Driver for injuries sustained in a September 24, 2015 incident on Defendants’ premises and involving one of Defendants’ buses.

This matter was set for trial on April 17, 2018. Plaintiff failed to appear on the trial date and the court dismissed the action without prejudice. Plaintiff moves to set aside dismissal based on counsel’s mistake, inadvertence, or excusable neglect.

“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).)

Prior to trial, Plaintiff gave his consent to counsel to settle this matter. However, before the settlement was executed, Plaintiff changed his mind and withdrew his consent to settle. (Declaration of Raymond Ghermezian, ¶ 5.) Counsel avers he believed his staff had filed a Notice of Settlement, which would have allowed the case to remain active for 45 days to file a request for dismissal. (Ghermezian Decl., ¶ 6.) Counsel did not appear on the trial date because he believed a Notice of Settlement had been filed. (Ghermezian Decl., ¶ 6.)

In Opposition, Defendant argues the mistake in failing to file the Notice of Settlement was not excusable. Defense counsel reminded Plaintiff to file the Notice of Settlement on two separate occasions before dismissal. Further, Defendant contends there is no “innocent client suffering from an attorney’s mistake,” as it was Plaintiff who first gave authorization to settle and then withdrew said authorization. Defendant seeks a mandatory settlement conference and monetary sanctions relating to this motion.

The Court finds this Motion to set aside dismissal was timely filed and counsel’s failure to appear on the trial date was the result of his mistake and excusable neglect in believing a Notice of Settlement had been filed. The Motion to set aside dismissal is GRANTED and this action is reinstated to the active calendar.

The dismissal entered on April 17, 2018 is vacated. 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.

However, the “court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code of Civ. Proc., § 473, subd. (b).) Plaintiff’s counsel is ordered to pay $350.00 to defense counsel for the cost of opposing this Motion within twenty (20) days of the date of this Order.

At the hearing on this Motion, the parties will discuss participating in a mandatory settlement conference, as requested by Defendant.

Moving party to give notice.