Defendant’s Motion to Vacate Dismissal
Case No. CU25-01144
Defendant’s Motion to Vacate Dismissal
Defendant MARIE ALICIA ELLIS moves to vacate the dismissal of this case entered November 20, 2025 pursuant to Code of Civil Procedure section 473. The dismissal followed settlement of Plaintiff AGUSTIN AYALA REYNOSO’s claims against Defendant related to an automobile collision on May 3, 2024 at Mare Island Way and Harbor Way in Vallejo.
Defendant asserts that, due to excusable mistake or neglect, her counsel retained for purposes of asserting her own claims for injury against Plaintiff related to that incident did not understand that Plaintiff had filed this action and so did not file a cross-complaint before Defendant’s other counsel, retained for purposes of defending against Plaintiff’s claims, negotiated and entered the settlement.
Code of Civil Procedure section 473 allows a court to relieve a party or his legal representative from a judgment, dismissal, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. Though the moving party bears the burden of showing that its mistake or neglect was excusable, any doubt as to that showing must be resolved in the moving party’s favor to promote legislative policy favoring trial on the merits. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420.)
These legislative goals mean that a court’s discretion to deny a section 473 motion is limited to situations where it is clear that the moving party’s mistake or neglect was inexcusable. (Id. at 1420.) In the context of a section 473 motion, the absence of prejudice to the opposing party is something to consider rather than a requirement before granting relief. (Ibid.)
In Huens v. Tatum (1997) 52 Cal.App.4th 259 (Huens) the plaintiff sued two defendants over injuries sustained in an automobile collision. The plaintiff received a settlement offer for the larger of the two defendants’ insurance policy limits and the plaintiff accepted; however, it turned out that the lesser of the two policies was also available as supplemental coverage. (Id. at pp. 261-262.)
The plaintiff moved to vacate the dismissal of the case against the lesser defendant he had entered pursuant to the settlement agreement, citing Code of Civil Procedure section 473. (Id. at p. 262.) The motion was properly denied. (Ibid.) Section 473 provides for mandatory relief from a dismissal or default entered against a party due to that party’s attorney’s mistake, inadvertence, surprise, or neglect; it was under this mandatory relief provision that the plaintiff sought to vacate the dismissal against the lesser defendant. (Ibid.)
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This mandatory relief provision was not intended to apply to voluntary dismissals. (Id. at p. 264.) “The purpose of the statute was to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys.” (Ibid. [italics in original].) Thus, it is not appropriate to use section 473’s mandatory relief provisions to vacate a voluntary dismissal entered pursuant to settlement. (Id. at p. 265.) Given that there was “no serious dispute” that counsel’s mistake in ascertaining policy limits was inexcusable, either, there was also no basis in that case to use the discretionary relief provisions of section 473 to vacate the dismissal. (Ibid.)
As suggested by that final statement from Huens, it cannot be said that a dismissal subsequent to a settlement can never be vacated via section 473. In Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249 (Zamora) the plaintiff sued the defendant for breach of contract relating to payment under a construction contract. The defendant cross-complained and when the plaintiff’s attorney sent the defendant a settlement offer that offered to enter judgment against the plaintiff the defendant signed quickly. (Id. at p. 252.)
The plaintiff’s counsel quickly realized that there was an error in the offer: it had been meant to say that the judgment would be in the plaintiff’s favor, not taken against him. (Ibid.) Counsel thus moved to set aside the judgment via the discretionary relief provisions of section 473. (Ibid.) The trial court’s grant of relief was correct. (Ibid.)
Section 473 allows a court to discretionarily set aside a judgment taken against a party as a result of his attorney’s mistake, inadvertence, surprise, or excusable neglect. (Id. at p. 254.) This discretionary relief is not limited to involuntary dismissals. (Id. at pp. 254-255.) So long as a party’s attorney can demonstrate that his error was excusable, and no prejudice to the other party will result, a party may obtain relief from even a voluntary dismissal. (Id. at p. 258.)
Relief is appropriate for Defendant here. Her counsel declares that his office was retained in September 2024 to represent Defendant in the context of her personal injury claims against Plaintiff relating to the same automobile collision as that of Plaintiff’s complaint here. (Declaration of Brian Larsen (“Larsen Dec.”) in Support of Motion at ¶¶ 3-5.) His office failed to internally communicate the information from Defendant that this case by Plaintiff existed, leading them to miss filing her cross-complaint before the matter settled. (Id. at ¶¶ 6-7; Reply Declaration of Brian Larsen (“Larsen Reply”) at ¶¶ 5-6.)
The matter settled without present counsel’s involvement because Defendant was represented by insurance counsel in the context of her defense against Plaintiff’s complaint here; Defendant’s insurance counsel was not available to Defendant to assert any cross-claims. (Larsen Reply at ¶ 4.)
Defendant brought this motion within six months of the dismissal to be vacated, the dismissal having been entered on November 20, 2025 and this motion having been filed on May 8, 2026. Counsel’s declaration shows how the failure to file a cross-complaint was the result of excusable neglect. The failure of office staff to route information to attorneys for review is the sort of clerical error found excusable in cases such as Bergloff v. Reynolds (1960) 181 Cal.App.2d 349, wherein an associate gave incorrect information at a hearing due to misunderstanding a lead attorney’s instructions, and Alderman v. Jacobs (1954) 128 Cal.App.2d 273, wherein a secretary lost the answer to be filed.
The last factor to consider – prejudice – also weighs in Defendant’s favor here. Vacating the dismissal to allow her to file a cross-complaint against Plaintiff will not disturb the settlement. Defendant never released any claims against Plaintiff. (Larsen Reply at ¶ 11, Exhibit A.) Plaintiff’s arguments that one must show fraud or mistake affecting the validity of a settlement to rescind it find no footing here where Defendant does not seek to rescind the settlement. Plaintiff suffers no material prejudice here as he does not demonstrate any way in which he is less able to defend a proposed crosscomplaint.
Defendant’s motion is granted.