Case Number: BC574031 Hearing Date: August 06, 2018 Dept: 7

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

On February 27, 2015, Plaintiffs Terry Switzer (“Plaintiff”) and Arthur Moore (collectively, “Plaintiffs”) filed this action against Defendant Anashe Meserkhani (“Defendant”) for motor vehicle and general negligence relating to an April 25, 2013 automobile accident. The matter was set for trial on January 18, 2018, but Plaintiff failed to appear. The Court dismissed the action without prejudice. Plaintiff moves to set aside dismissal based on counsel’s inadvertence, mistake, 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. (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 she represents Plaintiff in another case that was settled and all dates had been vacated. (Declaration of Michelle Iarusso, ¶ 1.) Counsel states it was her mistake that she did not calendar and appear for the January 18, 2018 trial date. (Iarusso Decl., ¶ 2.) Counsel further states she is working to properly supervise her support staff in calendaring court dates. (Iarusso Decl., ¶ 3.)

The Court finds this Motion was timely filed within six months of dismissal and dismissal was the result of counsel’s mistake, inadvertence, and excusable neglect. The Motion to set aside dismissal is GRANTED.

This action is returned to the active calendar. Trial is set for January 30, 2019, at 8:30 a.m. and the final status conference is set for January 16, 2019, at 10:00 a.m., all in Department 7.

Moving party to give notice.