Motion to Set Aside
Case No. 24CV451385 Motion to Set Aside
I. BACKGROUND This case stems from a collections case that Plaintiff Bank of America, N.A. (“Bank”) filed on November 11, 2024 against Defendant Arbinder Dhak (“Dhak”) with a principal debt amount of $71,277.36. (“Complaint”). Defendant Dhak filed an Answer on December 4, 2024. On July 29, 2025, at a Case Management Conference, the Honorable Shella Deen noted a non-appearance for the plaintiff and set the matter for an Order to Show Cause failure to appear by the plaintiff on September 25, 2025. (Minute Order for July 29, 2025). On September 25, 2025, Judge Deen noted another non-appearance for the plaintiff and dismissed the matter without prejudice. (Minute Order for September 25, 2025).
On November 6, 2025, the plaintiff filed this motion set aside and vacate the dismissal due to inadvertence, surprise, and excusable neglect of the plaintiff’s counsel. (Notice, p. 1). The motion was accompanied by a proof of service indicating mail service to defense counsel that was filed on that same day.
The motion is unopposed. Per Code of Civil Procedure section 1005(b) opposition papers were due on July 17, 2026. A failure to oppose a motion may be deemed a consent to the granting of the motion. California Rule of Court Rule 8.54c. A failure to oppose a motion may be deemed a consent to the granting of the motion. (California Rule of Court Rule 8.54(c)). Failure to oppose a motion leads to the presumption that the defendant has no meritorious arguments. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 489).
The Court carefully reviewed the following, Plaintiff Bank’s notice of motion (totaling two pages); memorandum of points and authorities (totaling two pages); Declaration of Roberty Kayvon (totaling two pages); proof of service; and the pleadings.
II. LEGAL STANDARD A. CODE OF CIVIL PROCEDURE SECTION 1008(a) “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order . . . make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” “The party making the application shall state 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.” (Code Civ.
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Proc., § 1008, subd. (a)). A trial court has discretion with respect to granting a motion for reconsideration. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212).
B. 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 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).
III. ANALYSIS Here, the Plaintiff seeks to set aside the dismissal that was issued by the Honorable Shella Deen on September 25, 2025. This motion to set aside was filed less than two-months after the dismissal was Ordered. Thus, the Court finds the motion to be timely filed.
Plaintiff Bank seeks to set aside the Order due to the mistake of the plaintiff’s attorney. Plaintiff’s counsel asserts that due to a clerical error, the matter was not property calendared, thus causing the plaintiff to fail to properly appear and file a default judgment packet in a timely fashion. (Declaration of Kayvon, ⁋ 3). Counsel states that the coversheet with the judgment and order for the judgment on the pleadings were not included. The documents were filed on June 3, 2025. Plaintiff’s counsel did not review the rejection email and thus failed to take note of the subsequent hearing. (Id.). Plaintiff’s counsel requests the dismissal to be set aside so the case can be litigated on its merit and that the Plaintiff not be harmed due to the error of its attorney. (Id., ⁋ 4).
The motion is unopposed. A failure to oppose a motion may be deemed a consent to the granting of the motion. California Rule of Court Rule 8.54c. A failure to oppose a motion may be deemed a consent to the granting of the motion. (California Rule of Court Rule 8.54(c)). Failure to oppose a motion leads to the presumption that the defendant has no meritorious arguments. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 489).
The Court finds that the plaintiff has met its burden of showing why the dismissal without prejudice ordered by Judge Deen on September 25, 2025 should be set aside pursuant to Code of Civil Procedure section 473(b).
IV. CONCLUSION Based on the foregoing, the Plaintiff’s unopposed motion to set aside is GRANTED. It is ORDERED that the September 25, 2025 court order dismissing the case without prejudice for plaintiff’s failure to appear is hereby set aside. The Court will prepare the final Order.
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