Case Number: BC693300 Hearing Date: April 23, 2018 Dept: 3

YOLANDA ARCE.,

Plaintiff(s),

vs.

GIOVANNI D’AMORE, ET AL.,

Defendant(s).

Case No.: BC693300

[TENTATIVE] ORDER GRANTING MOTION TO SET ASIDE DISMISSAL

Dept. 3

1:30 p.m.

April 23, 2018

Plaintiff, Yolanda Arce filed this action against Defendants, Giovanni D’Amore, et al. for damages arising out of the shooting of her husband, which occurred on Defendants’ premises. Plaintiff filed the complaint on 2/08/18.

Plaintiff filed a request for fee waiver with her complaint. The Court, on 2/08/18, issued an order indicating it needed more information in order to determine the validity of the request, and set a hearing for 2/22/18. Plaintiff did not appear on 2/22/18, and the Court therefore denied Plaintiff’s request for a fee waiver. On 3/12/18, having not received the necessary filing fees, the Court entered an order voiding the filing of Plaintiff’s complaint.

At this time, Plaintiff moves to set aside the dismissal. Plaintiff’s attorney declares the failure to appear at the hearing was because her office did not receive the notice of hearing. Plaintiff moves for relief per CCP §473(b). Notably, Plaintiff has paid the first appearance fee at this time.

§473(b) permits the Court to vacate a dismissal if the Court finds (a) the dismissal was entered as a result of Counsel’s excusable neglect, and (b) the motion was filed within a reasonable time after entry of dismissal, in no case more than six months. Leader v. Health Industries of America Inc (2001) 89 Cal.App.4th 603, 620, Pacific Grove v. Hamilton (1950) 100 Cal. App. 2d 508, 511.

Plaintiff’s attorney herein declares that the failure to appear at the hearing was a result of lack of notice of the hearing. The Court finds this constitutes excusable neglect. Counsel also declares that the mistake was not discovered until 3/15/18, when Counsel received notice of the dismissal. The motion was made seven days later on 3/22/18. The Court finds this is both within the six-month time limit and also reasonable under the explained circumstances. The motion is therefore granted.