Motion to Set Aside / Vacate Dismissal following OSC
Case No.: VCU326433 Date: July 7, 2026 Time: 8:30 A.M. Dept. 2-The Honorable Bret D. Hillman Motion: Motion to Set Aside / Vacate Dismissal following OSC Tentative Ruling: To grant the motion and set the matter for trial.
Facts and Analysis Plaintiff filed this matter September 30, 2025.
On January 28, 2026, a Case Management Conference ("CMC") was held. Plaintiff failed to file a Case Management Statement or attend the CMC.
On February 2, 2026, this Court issued an OSC why sanctions in the amount of $250.00, including dismissal of this action, should not be imposed for the failure to file a proof of service, appear at CMC on January 28, 2026, and file a Case Management Statement.
At the OSC and continued CMC on March 25, 2026, no appearance was made by Plaintiff and the Court dismissed this matter without prejudice.
On May 28, 2026, Plaintiff filed this motion for relief from dismissal based on Plaintiff's counsel's sole fault pursuant to Code of Civil Procedure section 473, stating "The CMC/OSC of March 25, 2026 was not properly entered on the office calendar or appearance calendar, and no appearance was made. Although calendaring tasks are delegated within my office, the duty to ensure compliance with court orders and to appear at scheduled hearings rests with me as counsel of record." (Declaration of Soofer P.10.)
The Court notes proofs of service of the complaint filed May 11, 2026, indicating that service occurred February 3, 2026.
In oppositio n, Defendants argue "Code of Civil Procedure, Sec.473(b), provides that relief MAY be granted from dismissal through mistake, inadvertence, surprise, or excusable neglect." The opposition argues that the reason for the failure to appear must be excusable neglect.
However, w here an "attorney affidavit of fault" is filed, there is no requirement that the attorney's mistake inadvertence, etc., be excusable. Relief must be granted even where the default or dismissal resulted from inexcusable neglect by the defendant's attorney (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4 th 868 897 (disapproved on other grounds in Even Zohar Const. & Remodeling, Inc. v. Bellaire Townhouses LLC (2015) 61 Cal.4 th 830, 845)
The Court is not concerned with the reason for the attorney's inexcusable mistake (Billing v. Health Plan of America (1990) 225 Cal.App.3d 250, 256
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The Court accepts counsel's declaration as to the calendaring error. The purpose of the mandatory relief section of section 473(b) is "to alleviate the hardship on parties who lost their day in court due solely to an inexcusable failure to act on the part of their attorneys." (Zamora v. Clayborn Contracting Group, Inc. (2002) 26 Cal.4 th 249, 257.)
The Court, therefore, grants the motion and vacates the dismissal. The Court intends to conduct the CMC at the date of the hearing on this motion and set the matter for trial.
If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.
Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.
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