Davila v. McAlister-Minor, et al.

(48) Tentative Ruling

Re: Davila v. McAlister-Minor, et al. Superior Court Case No. 25CECG00808

Hearing Date: August 13, 2026 (Dept. 403)

Motion: By Plaintiff to Set Aside Dismissal

Tentative Ruling:

To grant plaintiff Cynthia Davila’s motion to set aside dismissal. The dismissal entered on April 14, 2026, is set aside on the grounds of “attorney’s mistake, inadvertence, surprise or neglect.” (Code Civ. Proc., § 473, subd. (b).).

To set a Case Management Conference for September 10, 2026, at 3:27 p.m. in Department 403.

To deny defendant Torella McAlister-Minor’s motions for sanctions against plaintiff Cynthia Davila. (Code Civ. Proc., §§ 128.5, 128.7.)

Explanation:

Unauthorized Practice of Law

The opposition filed in response to the instant motion was filed by defendant Torella McAlister-Minor (“Defendant”) in propria persona on behalf of herself and defendants Fresh Start Youth Center and Renee Lane. A non-attorney cannot act in propria persona to represent another. (Bus. & Prof. Code, § 6125; Abar v. Rogers (1981) 124 Cal.App.3d 862, 865.) As such, while Defendant may represent herself, she may not represent other defendants. Thus, the opposition is considered as it relates to Defendant only.

Motion to Set Aside Dismissal

The court is empowered to relieve a party “upon any terms as may be just ... 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).) Where a motion seeking this relief is based on an “attorney affidavit of fault,” the relief is mandatory. (Ibid.) Otherwise, relief is discretionary. (Ibid.)

“Because the law favors disposing of cases on their merits, ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits’ (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 [superseded by statute on other grounds]).” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135.) Where the party seeking relief seeks such relief promptly and no prejudice will result 17

to the opposing party, “very slight evidence will be required to justify a court in setting aside the default.” (Elston v. City of Turlock, supra, 38 Cal.3d at p. 233.)

Plaintiff’s counsel requests that mandatory relief be granted under Code of Civil Procedure section 473, subdivision (b) to set aside dismissal. Plaintiff’s counsel’s application for relief included counsel’s affidavit of fault. The affidavit states that counsel failed to appear at the hearing on April 14, 2026, which resulted in dismissal. Counsel declared that she overlooked the second page of the December 10, 2025 minute order that contained the setting of the hearing on April 14, 2026. Counsel submits that this mistake or her neglect resulted in dismissal of the case.

Defendant raises in opposition that plaintiff’s counsel’s failure to appear at the hearing on April 14, 2026, due to her failure to read the entire December 10, 2025 minute order does not constitute mistake, inadvertence, surprise, or neglect. However, where counsel files a sufficient affidavit of fault under Code of Civil Procedure section 473, subdivision (b), relief must be granted even where the dismissal resulted from counsel’s inexcusable neglect. (See Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 894, disapproved on other grounds by Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830.) Regardless, the court finds counsel’s failure to be apprised of the entire minute order constitutes a mistake or excusable neglect.

Defendant further argues that she would be prejudiced if dismissal is set aside because the claims are stale and the costs of further litigation was unanticipated. After the case was dismissed on April 14, 2026, over one month lapsed when the instant motion was filed by Plaintiff’s counsel. Defendant does not present by way of argument or declaration how the advancement of about one month in the case has prejudiced Defendant’s ability to effectively conduct discovery or otherwise participate in the litigation. As such, the possible prejudice to Defendant is outweighed by the policy favoring disposition on the merits of a case. (Elston v. City of Turlock, supra, 38 Cal.3d at p. 233.)

Plaintiff’s counsel’s affidavit sufficiently demonstrated that her mistake or neglect resulted in the dismissal of the action, thus, mandatory relief is proper.

Procedural Requirements

The application for discretionary relief, and notice to the adverse party, must be made within a reasonable time, not exceeding six months from the court’s order to dismiss. (Code Civ. Proc., § 473, subd. (b).) Plaintiff met the procedural requirements in filing the present motion.

Therefore, the motion to set aside the dismissal ordered on April 14, 2026 is granted.

Request for Sanctions

In her opposition, Defendant requests for sanctions to be issued against Plaintiff under Code of Civil Procedure sections 128.5 and 128.7. Motions for sanctions under these sections must be made separately from other motions or requests. (Code Civ. Proc., §§ 18

128.5, subd. (f)(1)(A), 128.7, subd. (c)(1).) Defendant’s request is included in her opposition to the present motion. As such, Defendant’s motion for sanctions does not comply for the procedural requirements of either statute because they were not made separately from other motions and requests. Defendant’s request for sanctions is denied.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: SMC on August 12, 2026. (Judge’s initials) (Date)

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