MOTION TO SET ASIDE/VACATE DISMISSAL
learned about Bank of America’s alleged divestiture of its interest.
108 Hamidi v. Manheim Investment, 2020- 01145159 MOTION FOR RECONSIDERATION – TENTATIVE POSTED PREVIOUSLY
ORDER TO SHOW CAUSE – APPEARANCES REQUIRED 109 110 Mood v. City of Newport Beach, 2023- 01332356 MOTION TO SET ASIDE/VACATE DISMISSAL – DENIED
Plaintiff Ivin Mood’s motion to set aside the dismissal of this action and for reconsideration is DENIED for the reasons set forth below.
On February 4, 2026, Plaintiff failed to appear for a Status Conference and the Court discharged the Status Conference and set an Order to Show Cause re: Why the Case Should Not Be Dismissed for Plaintiff’s Failure to Appear for April 6, 2026 at 1:30 p.m. (ROA 370.)
Plaintiff failed to appear on April 6 and the Court ordered the action dismissed with prejudice. (ROA 390.)
Plaintiff seeks an order setting aside the dismissal or reconsidering it pursuant to Code of Civil Procedure sections 473(b) and 1008(b).
In the declaration attached to the Motion, Plaintiff asserts that he was surprised when he did not see anyone in the courtroom of Department N14 on April 6 and after waiting outside for five minutes to see if the calendar would be posted outside the courtroom, he entered to ask the Clerk whether the case would be heard. At that time, the Clerk informed Plaintiff that the case had already been called.
Section 1008(b) provides, in relevant part: “A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”
Here, the action was not dismissed based on any application for an order made by any party. Rather, it was based on Plaintiff’s failure to appear at an OSC set by the Court. Thus, section 1008(b) does not apply.
Section 473(b) provides, in relevant part: “The court may, upon any terms as may be just, relieve a party or the party’s legal representative from a judgment, dismissal, order, or other proceeding taken against the party through the party’s mistake, inadvertence, surprise, or excusable neglect.”
The law favors disposing of cases on their merits and any doubts concerning section 473 must be resolved in favor of granting relief. (
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“The concept of ‘excusable,’ . . . is not synonymous with a get-out-of-jail-free card for parties who later come to regret past inaction or sitting on their rights. ‘ “ ‘The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief. [Citations.] It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment.
Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied. [Citation.] Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs. . . . The only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded.’ ” ’ [Citation.]” (McClain, 39 Cal.App.5th at pp. 414-415.)
Here, Plaintiff was aware of the April 6 hearing and, as with other hearings in this matter on March 23, 2026, February 4, 2026, and November 17, 2025, he failed to appear. His own declaration establishes that he found the correct department without issue on the date of the hearing and the only reason the case was dismissed was his failure to enter the department and appear when the case was called. This inadvertence is not excusable or reasonable. Thus, the Court finds that relief under section 473(b) is unwarranted.
In light of the above, the motion is DENIED. Court orders Clerk to give notice.
111 Pass v. Oakmont Management Group, 2026-01564998 MOTION FOR PREFERENCE – GRANTED
Code of Civil Procedure section 36(a) permits a party who is over 70 years of age to petition the court for trial preference, which the court must grant if it makes both of the following findings: (1) The party has a substantial interest in the action as a whole; and (2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.
Section 36 “was enacted for the purpose of assuring that an aged or terminally ill plaintiff would be able to participate in the trial of his or her case and be able to realize redress upon the claim asserted.” (Looney v. Superior Court (1993) 16 Cal.App.4th 521, 532.)
Plaintiff Ella Pass moves for Trial Preference under section 36(a). Plaintiff has a substantial interest in this action as she is the sole plaintiff. Plaintiff is currently 94 years old. (Decl. of Ella Pass, ¶ 2.)
Plaintiff submits the declaration of her counsel, who details that Plaintiff suffered serious orthopedic injuries, endured two hip surgeries and a 23-day hospitalization marked by serious complications, and now depends on around-theclock care with a statistical life expectancy of roughly 3.63 years. (Barnett Decl., ¶¶ 6–9.)
The declaration complies with CCP §36.5 and the Court finds that the