Case Number: BC629946 Hearing Date: April 05, 2018 Dept: 92

SANAM GHOLIAN,

Plaintiff(s),

vs.

LEONARD RUIZ HERNANDEZ, et al.,

Defendant(s).

Case No.: BC629946

[TENTATIVE] ORDER GRANTING MOTION TO VACATE DISMISSAL

Dept. 92

1:30 p.m.

April 5, 2018

Plaintiff, Sanam Gholian filed this action against Defendant, Leonard Ruiz Hernandez for damages arising out of an automobile accident. Plaintiff filed the complaint on 8/11/16. On 1/25/18, the Court called the case for an FSC; no party appeared. On 2/13/18, the Court called the case for trial. Again, no party appeared, and the Court dismissed the case.

At this time, Plaintiff moves to set aside the dismissal. Plaintiff’s attorney declares the failure to appear at the FSC and trial was due to a calendaring error in his office.

The Court has discretion to vacate a dismissal under Cal. Code Civ. Proc. §473. The motion must be made within “a reasonable time,” not exceeding six months. Here, Plaintiff’s counsel adequately showed excusable neglect (calendaring error). Counsel filed the motion less than a month after dismissal was entered, and therefore also adequately established diligence in seeking relief.

The Court notes that Plaintiff’s attorney indicates the case is “ready to proceed to trial.” There is, however, no proof of service of the summons and complaint on file, and Defendant has not filed an answer. The Court sets an OSC re: dismissal for failure to file proof of service and trial-setting conference for Monday, 5/07/18 at 8:30 a.m. in D-92.