Kenneth Paul Atrat v. Rayna Savala

Code of Civil Procedure, section 473 subdivision (b)

Code of Civil Procedure section 473, subdivision (b), provides that a court may relieve a party from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. It must be made within 6 months after the judgment, dismissal, order, or proceeding was taken. Relief may be based either on an “attorney affidavit of fault,” in which event, relief is mandatory; or declarations or other evidence showing “mistake, inadvertence, surprise or excusable neglect,” in which event relief is discretionary.

With respect to discretionary relief under section 473, subdivision (b), the party moving for relief on the basis of “mistake, inadvertence, surprise, or excusable neglect” must show specific facts demonstrating that one of these conditions was met. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.) The burden is on the moving party to show that the neglect was excusable: i.e., that the default could not have been avoided through the exercise of ordinary care. (Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58.)

Under these circumstances, Code of Civil Procedure section 473, subdivision (b) does not apply. Atrat elected to dismiss his action without prejudice pursuant to Cal. Code of Civil Procedure section 581. (Savala Decl. ¶ 7; RJN Ex. 6.)

Code of Civil Procedure section 581, subdivision (c) provides that “[a] plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial.

Under these circumstances, Atrat had every right to dismiss this case, and there was no mistake or inadvertence at issue. Accordingly, principles of equity do not apply under Code of Civil Procedure section 473, subdivision (b) where Atrat dismissed his action. (Savala’s Moving papers, pg. 25:20-21.) Furthermore, Savala’s confusion about hearing dates (Savala Moving Papers, pg. 7:2-18) does not apply, as her confusion pertained to the motion to strike, which the court denied on January 21, 2026. (RJN Ex. 3.) That confusion has no bearing on a plaintiff voluntarily dismissing their case.

Code of Civil Procedure, section 473 subdivision (d)

Code of Civil Procedure section 473, subdivision (d) states, “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

Under these circumstances, Code of Civil Procedure section 473, subdivision (d) does not apply. Atrat’s dismissal was entered on a standard CIV-110 Request for Dismissal and noticed via CIV-120 Notice of Entry of Dismissal. (RJN Ex. 6.) The dismissal was without prejudice and covered the entire action. (Id.) Nothing in the record indicates the dismissal was void for lack of jurisdiction or a fundamental defect. The clerk’s entry reflects a routine and authorized ministerial act.

Finally, Savala’s arguments that the Atrat’s dismissal violated due process are meritless. Atrat exercised his right to voluntarily dismiss his action, and there is no need to reopen Atrat’s claims when he has voluntarily dismissed them.

Accordingly, the Court denies Savala’s motion to vacate dismissal.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 06/29/26. (Judge’s initials) (Date)

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