Judge: Anne Hwang, Case: 21STCV44574, Date: 2023-10-24 Tentative Ruling

Case Number: 21STCV44574    Hearing Date: October 24, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On December 7, 2021, Plaintiff Interinsurance Exchange of the Automobile Club (Plaintiff) filed a subrogation action against Defendants Lisandro Perez, Rosa Fuentes Gonzalez, and Does 1 to 10.

On June 6, 2023, the case was called for trial. Counsel for plaintiff did not appear and the Court dismissed the complaint without prejudice pursuant to Code of Civil Procedure section 581(b)(3). (Min. Order, June 6, 2023.)

On July 17, 2023, Plaintiff filed the instant motion to set aside the dismissal.

LEGAL STANDARD

Under Code of Civil Procedure section 473(b), the Court may relieve a party from a dismissal taken against him through his mistake, inadvertence, surprise, or excusable neglect.  This application must be filed no more than six months after entry of the order from which relief is sought, and must contain an affidavit of fault demonstrating the moving party’s mistake, inadvertence, surprise, or excusable neglect.

A mistake is a basis for relief under section 473 when by reason of the mistake a party failed to make a timely response.  Surprise occurs when a party is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the party has shown some reasonable excuse for the default.  (Credit Managers Association of California v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.) An “excusable” error means one which a reasonably prudent person under the same or similar circumstances might have made. (Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1007.)  Under Code of Civil Procedure section 473, the moving party bears the burden of demonstrating an excusable ground, such as fraud or mistake, justifying a court’s vacating a judgment.  (Basinger v. Roger & Wells (1990) 220 Cal.App.3d 16, 23–24.) 

Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) However mandatory relief is only available when a party fails to oppose a dismissal motion (“which are procedurally equivalent to a default”). (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 620.) The mandatory relief provision does not apply to dismissals for “failure to prosecute [citations omitted], dismissals for failure to serve a complaint within three years [citations omitted], dismissals based on running of the statute of limitations [citations omitted], and voluntary dismissals entered pursuant to settlement [citations omitted].” (Id.)

DISCUSSION

            Procedurally, the present motion is timely because it was filed within six months after the case was dismissed.

            The Declaration of Judi A. Bailey states that she failed to make sure the final status conference and trial date in this case were calendared. (Bailey Decl. ¶ 5.) She declares this was caused by her “mistake, inadvertence, surprise, or excusable neglect.” (Id.)  The Court finds that the failure to appear was due to excusable neglect and grants the motion to set aside the dismissal 

CONCLUSION AND ORDER

Therefore, the Court GRANTS Plaintiff’s motion to set aside the dismissal.  

The Final Status Conference is set for November 27, 2023 at 10:00 a.m. in Department 32 of the Spring Street Courthouse.

Trial is set for December 11, 2023 at 8:30 a.m. in Department 32 of the Spring Street Courthouse.

            Plaintiff shall provide notice of the Court’s order and file a proof of service of such.