Judge: Audra Mori, Case: 21STCV21315, Date: 2022-09-06 Tentative Ruling

Case Number: 21STCV21315    Hearing Date: September 6, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Michael Aisley (“Plaintiff”) filed this action against Defendants Grant M. Uberstine, Gary Uberstine, and State Farm Insurance (“State Farm”) for damages arising out of a motor vehicle accident.  On December 8, 2021, Plaintiff filed a Request for Dismissal dismissing his complaint.      

At this time, Plaintiff moves to set aside the dismissal based on mistake and inadvertence.  Plaintiff asserts he intended to dismiss only State Farm but erroneously filled out the Request for Dismissal form and dismissed the entire case.  Plaintiff, who is in pro per, provides that he agreed to dismiss State Farm after meeting and conferring with State Farm’s counsel, and that after realizing his mistake, Plaintiff filed this motion. 

This matter was last heard on July 8, 2022, where it was continued to today.  Plaintiff was ordered to give notice to Defendants.  (Min. Order July 8, 2022.)  Plaintiff has now filed proof of service of the moving papers and a copy of the Order continuing the hearing on all defendants.  No opposition has been received.

2. Motion to Vacate Dismissal

CCP §473(b) provides, in pertinent part:

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. Application for this relief … shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. …

A mistake is a basis for relief under CCP § 473 when, for example, by reason of the mistake a defendant failed to make a timely response.  Surprise occurs when a Defendant is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the Defendant 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.)  Under CCP § 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.) 

Here, the motion was timely filed within six months of the dismissal.  Moreover, Plaintiff attests that he incorrectly filled out the December 8, 2021 Request for Dismissal inadvertently dismissing the entire case, although Plaintiff intended to dismiss State Farm only.  The Court finds Plaintiff’s declaration establishes mistake, inadvertence and/or excusable neglect in connection with the dismissal. 

The motion is therefore granted.  (CCP § 473(b).)  The action is reinstated.  The Court sets an Order to Show Cause Re: Entry of Default for ________________.   Plaintiff is ordered to serve notice of this order, on all defendants in the same manner as the summons must be served within 30 days. 

Plaintiff is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 6^th day of September 2022