Case Number: TC028756 Hearing Date: March 20, 2018 Dept: A

# 9. Teodora Sanchez v. Julio Ramirez

Case No.: TC028756

Matter on calendar for: Hearing on unopposed motion to set aside dismissal

Tentative ruling:

I. Background

The Court dismissed this Partition action without prejudice on August 30, 2017 after no one appeared at the August 30, 2017 Case Management Conference and OSC re Dismissal for Failure to Prosecute.

Plaintiff Teodora Sanchez moves unopposed to set aside that dismissal.

Plaintiff’s counsel Marcus Gomez has submitted a declaration stating that he failed to appear at the August 30, 2017 Case Management Conference and OSC re Dismissal for Failure to Prosecute because he failed to calendar that hearing date.

II. Standard

CCP § 473(b) provides, in relevant part:

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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

Mistake of fact is when a person understands facts to be other than they are. (Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653.) Surprise denotes a condition or situation in which a party “is unexpectedly placed… without any default or negligence of his own… which ordinary prudence could not have guarded against.” (McGuire v. Drew (1890) 83 Cal. 225, 229.) An error is excusable if a reasonably prudent person under the same or similar circumstances might have made the same error. (Zamora v. Clayborn Contracting Group, Inc. (2002) 29 Cal.4th 249, 258.) [Citations omitted.]

The California Supreme Court has held the following:

Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations “very slight evidence will be required to justify a court in setting aside the default.” [Citations.] [¶] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. [Citations.] Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. [Citations.]

(Elston v. City of Turlock (1985) 38 Cal.3d 227, 233-34.)

A court also has inherent, equitable power to set aside a judgment on the ground of “extrinsic fraud or mistake.” (Olivera v. Grace (1942) 19 Cal.2d 570, 576.) There are three essential requirements to set aside a default judgment based on extrinsic mistake: (1) a meritorious defense; (2) diligence in seeking relief once the default or default judgment is discovered; and (3) a satisfactory excuse for not presenting a defense to the original action. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.) The statutory time limits on relief under CCP §§ 473(b) and 473.5 do not apply, but once the purported extrinsic fraud or mistake is discovered, a party is expected to proceed diligently to seek relief. The diligence requirement is inextricably intertwined with prejudice to the plaintiff. (Id. at 983-984.)

III. Analysis

CCP § 473(b) merely requires Defendant to move for relief within 6 months and show mistake, inadvertence, surprise, or excusable neglect. Plaintiff has, albeit barely, complied with these requirements. (See Gomez Decl.) Public policy favors a trial on the merits. Absent an opposition, the Court grants Plaintiff’s motion to set aside the August 30, 2017 dismissal.