| Case | County / Judge | Motion | Ruling | Indexed | Hearing |
|---|
Motion to set aside order of dismissal
While the notice of the demurrer challenges the sufficiency of the ninth cause of action against DPSI, the memorandum does not provide the court with any legal authority or factual analysis as to why the ninth cause of action is purportedly insufficiently pled against DPSI. The demurrer to the ninth cause of action is, therefore, overruled.
Moving Defendant to give notice.
Case Management Conference
The Case Management Conference is continued to July 23, 2026, at 9:00 a.m. in this department.
Plaintiff to give notice.
7 Arroyo v. Plaintiff Hermila Arroyo’s motion to set aside order of dismissal is California Lawyers GRANTED on condition that Defendants are served within 30 days of this & Advocates, APC order.
The court sets an OSC re dismissal for failure to serve Defendants for June 25, 2026 at 9:00 a.m.
Plaintiff seeks to set aside the dismissal entered on April 10, 2025. Given that the dismissal occurred more than six months ago, Plaintiff seeks to set aside the dismissal based on the court’s equitable power and not section 473.
Apart from any statutory authority, a court has inherent, equitable power to set aside a judgment on the ground of “extrinsic fraud or mistake.” (Olivera v. Grace (1942) 19 Cal. 2d 570, 576). There are three essential requirements to obtain relief. The party in default must show: (1) a meritorious defense; (2) a satisfactory excuse for not presenting a defense to the original action; and (3) diligence in seeking to set aside the default once it was discovered. (Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 982).
A motion to vacate a default or dismissal that is made more than six months after entry of default can be made on the ground that a court has the inherent equitable power to grant such relief where there has been extrinsic fraud or mistake. (Orange Empire Nat. Bank v. Kirk, (1968) 259 Cal.App.3d 347, 352-53).
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
“Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding ... The essence of extrinsic fraud is one party's preventing the other from having his day in court.” (Sporn v. Home Depot USA, Inc. (2005) 126 Cal. App. 4th 1294, 1300). Relief based on extrinsic fraud is not limited to fraud by the opposing party. Extrinsic fraud may include circumstances where “an attorney fraudulently or without authority assumes to represent a party and connives at his defeat ...” (Estate of Sanders (1985) 40 Cal.3d 607, 614, citing United States v. Throckmorton (1878) 98 U.S. 61, 65–66.
Here, Plaintiff has provided sufficient evidence to establish extrinsic mistake and/or extrinsic fraud. Plaintiff relied on her prior attorneys, the California Lawyers & Advocates, APC to pursue and prosecute her claims in a timely manner. (Mvg. Arroyo Decl., ¶ 6). As of April 2024, her prior attorneys assured Plaintiff that everything in her case “was going very well and not to worry – the case is almost done and the attorneys are fighting for the max.” (Id., ¶ 7). Plaintiff attempted to call her prior attorneys for an update, but never received a call back and her calls would go straight to voicemail. (Id., ¶ 8). Plaintiff became concerned and retained new counsel on May 15, 2025. (Id., ¶ 9). Plaintiff learned that the case was dismissed in April 2025, but was not informed by her prior attorneys. (Id.)
The court finds that this evidence the conduct of Plaintiff’s prior attorneys deprived Plaintiff of the opportunity to present her claim to the court and Plaintiff was kept ignorant and was prevented from fully participating in this action due to her prior attorneys’ conduct. The court will note that the evidence suggests a lack of diligence, given that Plaintiff retained new counsel on May 15, 2025, but did not file this motion until December 29, 2025.
Nevertheless, given the liberal policy of allowing matters to proceed on the merits, on the court’s own inherent power, the motion is GRANTED on the condition that Defendants are properly served with the complaint within 30 days of this order. Plaintiff is admonished that the court will not likely entertain any further dilatory conduct by Plaintiff in prosecuting this action. 8 Liang v. Judicial Defendant Judicial Council of California’s demurrer to the Complaint filed Council of by Plaintiff Joseph Liang is SUSTAINED without leave to amend.
California In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)
In the underlying smalls claims action, Plaintiff was sued by a neighbor over an issue involving a residential drainpipe. (Compl. at p. 5, ¶ 1.) On Juen 22, 2023, the small claims court ruled against Plaintiff. (Id. at p. 5,
21