Plaintiff's Motion to Set Aside / Vacate Dismissal
witness or have decided to offer the different or additional testimony of that expert witness.
(2) The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following:
(A) Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony.
(B) Promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action.
(d) Leave to augment or amend is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.
Here, as to (a) and (b), the Court agrees that, as no expert depositions have yet been taken and the expert discovery cut off is not until August 3, 2026, Plaintiff will not be prejudiced by the augmentation. Further, Defendant has agreed to permit the retention of an expert by Plaintiff in response to Dr. Posin. This would appear to eliminate any prejudice to Plaintiff. Any reliance on the disclosed neuropsychiatrist is therefore minimal.
Here, the Court finds (c)(1) met by the disclosure of the radiology films after the date of Defendant's disclosure of expert witnesses. Defendant's proposed additional expert is a neuroradiologist that could not have been retained without the radiology records, as opposed to the disclosed neuropsychiatrist. The Court finds sufficient exercise of reasonable diligence as to the subpoenaing of the radiology records and obtaining the May 5, 2026 responses by Plaintiff containing he radiology records and thereafter seeking to retain a neuroradiologist. Further, Plaintiff has sufficient time to depose Dr. Posin and, if necessary, retain their own expert to rebut the opinions of Dr. Posin.
As to (c)(2), the Court finds sufficient inadvertence for having not previously designated an expert based solely on Plaintiff's previous responses to discovery that he had a CT scan of his brain shortly after the incident on May 3, 2024. The Court finds Defendant has promptly, via the meet and confer process, provided sufficient information as to Dr. Posin, the expected topics of testimony and Dr. Posin's qualification.
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As to subsection (d), Defendant notes Dr. Posin will be prepared to have his deposition taken prior to trial. Therefore, the Court grants the motion.
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.
Re: Arthur J. Gallagher Risk Management Services, LLC vs. Madpaim Inc. Case No.: VCL326680 Date: July 16, 2026 Time: 8:30 A.M. Dept. 1-The Honorable David C. Mathias Motion: Plaintiff's Motion to Set Aside / Vacate Dismissal Tentative Ruling: To grant the motion
Facts
On October 7, 2025, Plaintiff sued Defendant "MADPAIM INC. DBA MAP AUTO REPAIR DBA ABOVE AND BEYOND AUTO BODY PAINT AND ACCESSORIES DBA FIX AUTO VISALIA" for failure to pay insurance premiums.
No timely proof of service was filed. On December 29, 2025, this Court set an order to show cause re: sanctions and dismissal for failure to file a proof of service. Notice was sent to the address of counsel stated on the complaint. At the OSC hearing on January 29, 2026, no appearances were made and this matter was dismissed without prejudice.
On June 11, 2026, Plaintiff filed this motion for relief from dismissal pursuant to Code of Civil Procedure section 473(b). In support, Plaintiff's counsel states the following: "4. Defendant was personally served on 05/15/2026. It was only upon receipt of a filing reject for the proof of service that my office became aware that the case had been dismissed.
5. My office first became aware of the OSC that had been scheduled for 01/29/2026 when researching the reason for the case dismissal. Therefore, due to inadvertence, I either misplaced the notice of this hearing date, or never received notice of the hearing date, and thus, said date never got calendared by my office.
6. I discovered the calendar date only after the Court rejected the proof of service filing and advised that the entire case had been dismissed due to lack of prosecution.
7. In response to being advised of the dismissal, I searched my entire office in an attempt to locate a Notice from the Court. However, I did not find one, and have still not been able to find, a Notice of an OSC re Dismissal.
8. Due to my inadvertence, the OSC was never calendared, and thus, I never appeared at the OSC re Dismissal that was heard on 01/29/2026." (Declaration of Gaba Jr. P.P.4-8.)
No opposition appears to have been filed.
Authority and Analysis
Where 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.) Rather, the trial court may deny the motion if it finds that the attorney's declaration of fault is not credible. (Cowan v. Krayzman (2011) 196 Cal.App.4 th 907, 915)
The Court accepts counsel's declaration as to the calendaring error and lack of receipt of the notice. 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.
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.
Re: Graham, Michael vs. CA Farms, LLC Case No.: VCU324716 (Consolidated - Lead) (Consolidated with Conterra Agricultural Capital, LLC vs. Prosperity Farms, LLC et al., PCU325122) Date: July 16, 2026 Time: 8:30 A.M. Dept. 1-Honorable David C. Mathias Motion: TCWA Motion for Leave to Intervene