Castillo vs. Yu

California (2007) 151 Cal.App.4th 168, 175.) “[T]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) “The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Ibid.)

Here, the proposed amendment involves additional allegations and legal theories concerning the same incident that is already alleged in the Complaint. This case is in its early stages, and no party has opposed the motion. The Court therefore exercises its discretion in allowing the amendment.

Plaintiff shall file the proposed first amended complaint within five (5) days of this order.

Plaintiff to give notice. 104 Castillo vs. Yu 2024-01419781

Motion to Set Aside/Vacate Dismissal – DISMISSED WITHOUT PREJUDICE

The court must vacate dismissals “resulting” from the attorney's “mistake, inadvertence, surprise, or neglect.” (CCP § 473(b).)

Mandatory relief is available only where the attorney failed adequately to oppose a motion to dismiss, not where the dismissal results from the attorney’s conduct preceding the motion to dismiss. Section 473(b) is not “the perfect escape hatch from the dismissal statutes.” (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1661.)

Here, Plaintiff seeks relief from the 06/05/2025 dismissal order. (ROA 40) Attorney Joseph Trenk, who was Plaintiff’s attorney in June 2025, declares, “In November 2024 I became seriously ill and developed circulatory complications in my lower extremities. I was hospitalized and, in December 2024, underwent surgery that resulted in the removal of two toes. I was out of my office for approximately two months recovering from this unexpected condition and was unable to attend to my pending cases.” (Dec. of Trenk ¶3.)

Attorney Trenk’s declaration suggests that he returned to work by March 2025 at the latest. He appeared remotely at a hearing on 04/07/2025 on an Order to Show Cause re: Dismissal. (ROA 28)

“Illness of counsel which actually disables him from timely compliance with the statutory rules of procedure constitutes excusable neglect if he moves promptly for relief as soon as his disability terminates or attenuates to the extent that a reasonable man under similar conditions would take action for relief. [Citations.] On the other hand, it has been held that illness occurring after the time for filing answer has expired without explanation for failure to answer within the regular statutory time does not constitute excusable neglect. [Citation.]

If the illness is such that there was no opportunity to obtain substitute counsel, it is excusable [citation], but contrariwise if there is opportunity to obtain substitute counsel to prevent the default from occurring [citation]. [¶] Discretion is abused in granting relief from default if the moving party’s supporting affidavit or declaration fails to set forth facts sufficient to constitute grounds for relief. [Citation.]” (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 280–281.)

Attorney Trenk’s declaration fails to explain why, after he returned to work, he failed to prosecute this case and allowed the dismissal to be entered on 06/25/2025, and therefore fails to provide evidence sufficient to establish excusable neglect. The motion is DENIED without prejudice.

Court clerk to give notice. 106 De La Torre v. Peterson Bros. Construction, Inc. 2024-01398380

Motion for Terminating Sanctions

Defendants Peterson Brothers Construction, Inc., Juan Zarate, Alma Sanchez, and Jessida Macias (collectively “Defendants”) seek an order for terminating sanctions against Plaintiff David Zazueta De La Torre (“Plaintiff”) in the form of striking out or dismissal of Plaintiff’s First Amended Complaint, with prejudice, on the grounds that Plaintiff has willfully and repeatedly failed to comply with discovery obligations and this Court’s