Cortez v. Medhat Kamal Mahmoud Produce, et al.

(34) Tentative Ruling

Re: Cortez v. Medhat Kamal Mahmoud Produce, et al. Superior Court Case No. 21CECG03035

Hearing Date: August 12, 2026 (Dept. 501)

Motion: by Plaintiff to Set Aside Dismissal

Tentative Ruling:

To grant the motion and set aside the dismissal of this action entered on March 25, 2026. (Code Civ. Proc. § 473, subd. (b).)

To set a case management conference on Thursday, September 17, 2026 at 3:00 p.m. in Department 97E.

Explanation:

“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.” (Code Civ. Proc. § 473, subd. (b).) Relief can be based either on an “attorney affidavit of fault,” in which event, relief is mandatory; or declarations or other evidence showing 'mistake, inadvertence, surprise or ‘excusable neglect,' in which event relief is discretionary.

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 resulted from inexcusable neglect by defendant's attorney. (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 897.)

In the present case, as required under Code of Civil Procedure section 473(b), Mr. Krell filed a declaration admitting the failure to appear at the March 25, 2026 Order to Show Cause due to his failure to properly calendar the hearing. (Krell Decl., ¶¶ 4-5.) Accordingly, the error falls within the mandatory relief prong of Code of Civil Procedure section 473(b). The motion is granted.

Pursuant to California Rules of Court, rule 3.1312