Motion to Vacate Dismissal (CCP section 473)
SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 12 (Hon. Nahal Iravani-Sani) Hon. Jose S. Franco, Presiding Courtroom Clerk, Ryan Nguyen 191 North First Street, San Jose, CA 95113 Telephone: (408) 882-2230
DATE: 7/10/2026 TIME: 9:00 A.M. and 9:01 A.M.
LINE 4 24CV434443 Stephen Zhao et al vs Hearing on Motion to Vacate Dismissal (CCP section 473) Tamura Designs, Inc. et al Plaintiff filed a motion to vacate the Court’s dismissal order on February 18, 2026 pursuant to Code of Civil Procedure section 473, along with a declaration of counsel but without a proof of service attached or filed. Defendant filed opposition papers on June 26, 2026, with a declaration of counsel, Exhibits A-F, and proof of service. Plaintiff’s reply was filed on July 2, 2026.
The Court has carefully reviewed the moving papers, including the declarations of counsel, and accompanying exhibits in all three filings related to this motion, and has taken note of the procedural history as noted in the filings by both parties.
Timeliness of Motion
Under California law, the six-month jurisdictional period to seek relief from a dismissal under Code of Civil Procedure Section 473, subdivision (b) begins to run from the entry of the dismissal, rather than from a prior oral pronouncement. (Code of Civ. Proc. § 473; Austin v. Los Angeles Unified School Dist. (2016), 244 Cal. App. 4th 918.) In this case, because the statute requires an application for relief to be made no more than "six months after entry of judgment" or after the dismissal "was taken," the six-month limitation period is triggered by the formal entry of the written dismissal order on August 19, 2025, rather than the oral pronouncement on August 1, 2025.
Although a court minute order from the August 1, 2025 oral order of dismissal was filed, the six-month jurisdictional period begins to run only upon the filing of a formal written order of dismissal signed by the court, rather than the entry of a minute order. (Code Civ. Proc. § 581d). A dismissal noted in a minute order is legally insufficient to constitute the "entry" of dismissal that triggers the Section 473(b) six- month limitation period. (Code of Civ. Proc, § 581d.)
Section 581d. explicitly establishes the requirements for entering a dismissal in that all dismissals ordered by the court must be in the form of a written order signed by the court and filed in the action to "constitute judgments and be effective for all purposes". Because section 581d. mandates a signed, written order for a dismissal to be effective "for all purposes," a mere notation of a dismissal in a minute order does not meet the statutory definition of an "entered" dismissal or judgment.
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SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 12 (Hon. Nahal Iravani-Sani) Hon. Jose S. Franco, Presiding Courtroom Clerk, Ryan Nguyen 191 North First Street, San Jose, CA 95113 Telephone: (408) 882-2230
DATE: 7/10/2026 TIME: 9:00 A.M. and 9:01 A.M.
Consequently, the six-month clock under Section 473(b) does not begin to run until the formal, signed written order of dismissal is filed.
As Plaintiff filed this motion within six months from the August 19, 2025 filing of the dismissal order, the Court finds that it is timely.
Code of Civil Procedure section 473(b)
Code of Civil Procedure section 473(b) provides for both discretionary and mandatory relief. In terms of discretionary relief section 473(b), in pertinent part, reads as follows:
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...
The mandatory provision of section 473(b) reads, in pertinent part, as follows:
Notwithstanding any other requirements of this section, the 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.
The general underlying purpose is to promote the determination of actions on their merits. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830). Under this statute, an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the
SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 12 (Hon. Nahal Iravani-Sani) Hon. Jose S. Franco, Presiding Courtroom Clerk, Ryan Nguyen 191 North First Street, San Jose, CA 95113 Telephone: (408) 882-2230
DATE: 7/10/2026 TIME: 9:00 A.M. and 9:01 A.M.
mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code of Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143).
As Plaintiff has filed a declaration with his motion, a sufficient showing has been made. Considering the purpose of the statute and policy reasons behind it, the motion is GRANTED. The August 19, 2025 order of dismissal is vacated and set aside.
The Court will set a further Case Management Conference and issue a specific order for Plaintiff’s counsel to appear at all future court dates.
Moving party (Plaintiff) to prepare the formal Order.
LINE 5 24CV445991 Christian Baluyot et al Hearing on Return of Warrant & Order for Examination vs Shirley Soliman Judgment Debtor Shirley Soliman (“Soliman”) was ordered to appear in person in Department 20 on November 19, 2025 at 9:01 AM for an Examination where she was to give information regarding a money judgment against her.
Because Soliman violated the Court Order by failing to appear at the November 19, 2025 hearing for Examination, the Court issued a Civil Bench Warrant for her arrest in the amount of $2,500.00.
That $2,500.00 Civil Bench Warrant was served on Soliman on May 11, 2026, at which time she signed a written promise to appear in person for an Examination on July 3, 2026 at 9:01 AM in Department 20.
On May 18, 2026, the Court sent a corrected notice of hearing date to the parties advising the July 4th holiday was being observed on July 3, 2026 and the Court was closed. The corrected notice of hearing date set the matter for July 10, 2026 at 9:00 AM in Department 12.
Accordingly, the parties are ordered to appear in person for this Examination.