Motion to Set Aside Dismissal
related dates. (11/25/25 Minute Order.) Defendant now contends that its stipulation was based on an undisclosed stipulation to the court that Defendant would be granted leave to file a cross-complaint.
Such contradicts the ex parte application. (See Def’s Ex Parte Appl., filed 11/24/25, p. 2, lines 1-12 [stating what the stipulation and requests were based upon].) Notably, the court continued the trial date as requested by Defendant – i.e., “to a date after March 1, 2026”. (Id., at p. 3, lines 6-9 and Exh. A [Stipulation].) Thereafter, and after Plaintiff filed trial documents, Defendant filed another ex parte requesting a trial continuance. Defendant’s ex parte was not based on any contemplated cross-complaint. Rather, it was based on defense counsel being engaged in another action in another county that is facing a 5 year statute. In response, the court continued the trial from 3/9/26 to 8/3/26. (See 3/2/26 Minute Order.)
Only thereafter, on 4/9/26, did Defendant file the instant motion for leave to file a cross-complaint.
The court further notes that despite the court ordering Defendant to file an answer within 30 days of 11/25/25, Defendant did not file the answer until months later, on 2/17/26, and only after Plaintiff gave notice that it would seek entry of default due to Defendant’s failure to timely file an answer.
It does not appear that Defendant has acted in good faith.
The motion is DENIED.
The 1-day bench trial remains set for 8/3/26.
Plaintiff to give notice.
8 Preciado vs. Acosta Motion to Set Aside Dismissal
The court GRANTS Plaintiffs CHRISTIAN PRECIADO, ROXY MENDEZ, and ROSALY VAZQUEZ’s (through her Guardian
ad litem ROXY MENDEZ) motion to set aside the dismissal issued on 2/9/26.
Code of Civil Procedure section 473(b) provides, “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.” An application under Section 473(b) must be accompanied by a copy of the answer or other pleading proposed to be filed therein; and be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (Code Civ. Proc., § 473
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The section continues in relevant part:
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 . . . 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. . . .
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 the party’s attorney. (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 897.) The motion is timely if filed within six months of the entry of default judgment or dismissal. (See Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1147.)
“Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.)
Here, Plaintiff’s application was filed within a reasonable time of the dismissal and appears to be based on counsel’s mistake, inadvertence, surprise, or excusable neglect. Attorney Hatch declares that the hearing date had been removed from his calendar. (See Hatch Decl. ¶ 13 [declaring the date “had . . . been removed from the counsel’s calendar”].)
In addition, the court notes the declaration of Attorney Hatch filed in support of the motion responds to this court’s Order to Show Cause as well, setting forth the steps counsel has taken to locate and serve Defendant Acosta with process.
For these reasons, the court GRANTS the motion to set aside the dismissal and re-sets the Case Management Conference and Order to Show Cause.
A Case Management Conference is hereby set for October 26, 2026, at 10:00 am in Dept. W8. All appearing parties SHALL file and serve a new and timely case management statement at least 15 calendar days prior to the continued hearing as required by the rules, including California Rules of Court rule 3.725 and Local Rule 369. Failure to do so may result in the imposition of monetary sanctions of $500.00 against the offending party and/or its attorney of record.
The Order to Show Cause (OSC) re sanctions, including Dismissal for Plaintiffs’ Failure to Serve and Prosecute and Monetary/Evidentiary Sanctions for Failing to File a Timely Case Management Statement is also hereby reset for October 26, 2026, at 10:00 AM in Dept. W8.
Further, the court exercises its discretion and ORDERS Attorney JOHN C. HATCH to pay $500 to the court (payable to the “Clerk of the Court”) within 30 days. Section 473(c)(1)(A) of the Code of Civil Procedure authorizes the court “[w]henever the court grants relief from a ... dismissal based on any of the provisions of this section, the court may ... “[i]mpose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party” or “[g]rant other relief as appropriate.”
Plaintiff to give notice to any Defendant(s).
9 Zhang vs. Martinez Motion for Sanctions (Code Civ. Proc., § 128.7) Motion for Relief from Jury Waiver
1. Motion for Sanctions
The court DENIES the motion for sanctions filed by Defendants MICHAEL MARTINEZ and ALCHEMY MEN’S GROOMING.
Defendants move for sanctions under Section 128.7 of the Code of Civil Procedure on the grounds that Plaintiff filed a second motion for summary adjudication that Defendants contend is duplicative, successive, and was already adjudicated by the court. Defendants argue that sanctions are warranted because California courts do not permit repetitive summary judgment motions absent newly discovered evidence, changed circumstances, or other valid justification, citing Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092 and Francois v. Goel (2005) 35 Cal.4th 1094.
Section 128.7 authorizes a court to impose sanctions on a party or attorney that presents a pleading, petition, motion, or other similar papers in the following circumstances:
1) the document is presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. 2) the claims, defenses, and other legal contentions therein are not warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. 3) the allegations and other factual contentions have no evidentiary support; 4) the denials of factual contentions are not warranted on the evidence.
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