Motion to Set Aside Dismissal
(49) Tentative Ruling
Re: Rare Service Heating and Air Conditioning, Inc. v. David et al. Superior Court Case No. 23CECG02137
Hearing Date: May 13, 2026 (Dept. 501)
Motion: by Plaintiff Rare Heating and Air Conditioning, Inc., to Set Aside Dismissal
Tentative Ruling:
To grant and vacate the dismissal entered on December 11, 2025. (Code Civ. Proc., § 473, subd. (b).)
To set a Case Management Conference for Tuesday, June 16, 2026, 3:00 p.m. in Department 97E.
Explanation:
Plaintiff Rare Service Heating and Air Conditioning, Inc., (“plaintiff”) moves to set aside the dismissal entered against it on December 11, 2025, under the mandatory relief provision of Code of Civil Procedure section 473, subdivision (b). Code of Civil Procedure section 473, subdivision (b), states, in pertinent 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 (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) 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.
“Relief under [the mandatory relief provision] is mandatory if the conditions are fulfilled.” (Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995) 31 Cal.App.4th 1481, 1487.) “The purpose of the mandatory relief provision is to relieve the client of the burden caused by the attorney's error, impose a burden on the attorney instead, and avoid additional malpractice litigation.” (Matera v. McLeod (2006) 145 Cal.App.4th 44, 63
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On August 28, 2025, plaintiff was informed of a Case Management Conference to be conducted on December 11, 2025. (Nunes Decl., ¶ 4.) At some point after August 28, 2025, counsel for plaintiff either mistakenly deleted or removed the December 11, 2025, Conference from counsel’s calendar. (Id., ¶ 5.) Plaintiff failed to appear at the Conference and the case was dismissed.
Plaintiff thereafter timely filed this motion within six months. (Code Civ. Proc., § 473, subd. (b).) The motion is in proper form, and is accompanied by the facts stated above, reflecting counsel’s mistake or neglect. The court finds that the conditions for relief under the mandatory relief provision are met. Accordingly, the motion is granted and the dismissal against plaintiff is set aside with another Case Management Conference set which plaintiff’s counsel is ordered to attend.
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: DTT on 5/12/2026. (Judge’s initials) (Date)
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