Case Number: BC680103 Hearing Date: August 30, 2019 Dept: 4B

[TENTATIVE] ORDER RE: MOTION FOR ORDER VACATING DISMISSAL

On October 17, 2017, Plaintiff Bria Lavette McClain (“Plaintiff”) filed this action against Defendant Clinton H. Stadig (“Defendant”) for (1) liability based on the dog bite statute, (2) general negligence, (3) negligence per se based on violation of lease law, (4) negligence per se based on violation of tethering law, and (5) common law liability arising from a dog attack that occurred on October 20, 2015. The case was set for trial on April 17, 2019. On that day, no party appeared, and the action was dismissed without prejudice. Plaintiff moves to vacate the dismissal under Code of Civil Procedure section 473, subdivision (b). There is no opposition.

“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 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. (Id.) “[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.” (Id.)

Plaintiff’s counsel states that at the time the complaint in this action was filed, counsel’s permanent secretary was on maternity leave and the temporary secretary failed to calendar the April 2, 2019 final status conference and April 17, 2019 trial dates. (Declaration of Ramin Saedi, ¶ 2b.) Counsel states that as a result, counsel failed to monitor this matter and appear at the April 2, 2019 final status conference and April 17, 2019 trial. (Id., ¶ 2c.) Counsel states that the failure to calendar the final status conference and trial dates and monitor this matter is due solely to counsel’s neglect. (Id., ¶ 2f.)

This Motion to vacate dismissal was timely filed within six months of dismissal. The dismissal was due to Plaintiff’s counsel’s mistake, inadvertence, or excusable neglect. The Motion to vacate the dismissal is GRANTED and the action is reinstated. Trial is set for February 27, 2020 at 8:30 a.m. in Department 4B and the Final Status Conference is set for February 13, 2020 at 10:00 a.m. in Department 4B.

The Court notes that Plaintiff has yet to serve Defendant with the summons and complaint. Given that it has been almost two years since the complaint has been filed, Plaintiff is ordered to serve Defendant with the summons and complaint forthwith and file proofs of service of the summons and complaint.

Moving party to give notice.