Case Number: BC632105 Hearing Date: October 30, 2018 Dept: 7

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

On September 1, 2016, Plaintiff Sharon Cochrane (“Plaintiff”) filed this action against Defendant East Whittier School District (“Defendant”) for premises liability and negligence per se relating to an October 22, 2015 trip and fall incident. On May 25, 2018, Plaintiff failed to appear at the OSC re dismissal. The action was dismissed without prejudice. Plaintiff moves to set aside dismissal on grounds of mistake and inadvertence.

“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. (Ibid.) “[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.” (Ibid.)

Plaintiff’s counsel states that his failure to appear at the May 25, 2018 OSC was due to the mistaken belief that the hearing would be held at the Stanley Mosk Courthouse. By the time he arrived at the Spring Street Courthouse, the Court had already dismissed the action. (Declaration of Richard Lara, ¶ 2.)

Defendant opposes this Motion on grounds Plaintiff’s counsel has engaged in a pattern of neglect, failure to prosecute this action, and repeated attempts to mislead the court. Plaintiff details the history of Plaintiff’s counsel’s failures to appear at scheduled hearings and argues such failures are likely to continue if the dismissal is set aside. In the alternative, Plaintiff seeks $1,200.00 against Plaintiff’s counsel for attorney’s fees and costs associated with making multiple appearances where Plaintiff’s counsel fails to appear and preparing the opposition to this Motion.

The Court finds this Motion to set aside was timely filed within six months of dismissal and was the result of Plaintiff’s counsel’s mistake, inadvertence, and excusable neglect. The Motion to set aside the May 25, 2018 dismissal is GRANTED. This action is reinstated and trial is set for March 18, 2019, at 8:30 a.m. in Department 7. The final status conference is set for March 4, 2019, at 10:00 a.m. in Department 7.

However, defense counsel’s request for monetary sanctions is GRANTED. Plaintiff’s counsel is ordered to pay $500.00 to Defense counsel within twenty (20) days of the date of this Order. (Code of Civ. Proc., § 473, subd. (c)(1)(A), (C).)

Moving party to give notice.