Case Number: VC061528    Hearing Date: August 19, 2014    Dept: SEC

SANDOVAL v. RAMONA AVENUE PARTNERS, LP
CASE NO.: VC061528
HEARING: 08/19/14

#3
TENTATIVE ORDER

Plaintiff THOMAS SANDOVAL’s motion to set aside dismissal is DENIED WITHOUT PREJUDICE. C.C.P. § 473.

On November 14, 2013, defendants’ motion for a terminating sanction was granted and the case was ordered dismissed. Plaintiff did not file written opposition or appear at that hearing. See Minute Order, 11/14/13. Defendant provided Notice of Ruling on November 21, 2013. Defendant submitted an additional Notice of Entry of order on December 4, 2013.

On June 4, 2014, plaintiff filed the subject motion seeking an order setting aside the dismissal under the mandatory relief provision of section 473. The mandatory relief provision of Code of Civil Procedure Section 473(b) applies to defaults entered as discovery sanctions where counsel admits failure to oppose. Matera v. McLeod (2006) 145 Cal. App. 4th 44, 68. Counsel submitted a declaration stating that from August 2013 through “early 2014,” he suffered a succession of illnesses which caused his failure to oppose the terminating sanctions motion and to appear at the hearing.

However, the motion was brought outside the maximum 6-month period set forth in subsection (b) of the statute. The six-month time period began to run the date the dismissal was entered, or November 14, 2014. See Lee v. Wells Fargo Bank, N.A. (2001) 88 Cal.App.4th 1187, 1199-1200. As noted above, the motion was filed on June 4, 2014.

In order to obtain equitable relief based on extrinsic mistake, plaintiff must show (1) a meritorious case, (2) a satisfactory excuse for not presenting a defense in the earlier proceeding and (3) diligence in seeking to set aside the judgment after discovery. Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 982. The dismissal was entered due to plaintiff’s failure to comply with the Court’s discovery orders. The motion is silent as to the status of the discovery outstanding at the time of the dismissal. Counsel’s declaration does not state when he learned of the dismissal, so the Court cannot ascertain whether the request was brought within a reasonable time.

Plaintiff may address those issues at the time of the hearing (or file another motion including evidence on those factors). Defendants have not filed opposition to the motion, and it is thus unclear whether they object to the request.