Judge: Daniel M. Crowley, Case: BC712633, Date: 2023-03-14 Tentative Ruling

Case Number: BC712633    Hearing Date: March 14, 2023    Dept: 28

Plaintiff Interinsurance Exchange of the Automobile Club’s Motion to Vacate Court Order

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On July 3, 2018, Plaintiff Interinsurance Exchange of the Automobile Club (“Plaintiff”) filed this action against Defendants Lauricia Lorraine Bustamante (“Bustamante”) and Wendy Michelle Perez (“Perez”) for subrogation.

On September 14, 2018, Perez filed an answer. On December 17, 2019, the Court dismissed Perez, without prejudice, pursuant to Plaintiff’s request.

On December 3, 2019, the clerk entered default against Bustamante. The Court granted the application for default judgment on September 23, 2020. Default was later vacated on June 13, 2022.

On January 30, 2023, Plaintiff filed a Motion to Vacate Order to be heard on March 9, 2023. The Court continued the hearing on the motion to March 14, 2023.

Trial is currently set for October 27, 2023.

PARTY’S REQUESTS

Plaintiff requests the Court vacate the previous Court order.

LEGAL STANDARD

“Section 473(b) provides for both discretionary and mandatory relief.  [Citation.]”  (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.)  The discretionary provision grants relief based upon a party or legal representative’s mistake, inadvertence, surprise, or neglect.   The discretionary provision states 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 accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

The mandatory provision 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. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”

“The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys.  [Citation.]”  (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723, emphasis added.)

DISCUSSION

Plaintiff’s application was filed within 6 months of the order.

The Court previously granted a continuance, pursuant to Defendant’s request, to continue trial to October 2023. Plaintiff’s counsel alleges they were not on notice as to the motion or to the ruling until approximately one month after the ruling. The granted continuance exceeds CCP §583.310’s mandatory 5-year rule, as this case was originally filed in July of 2018.

The Court finds good cause to grant the motion. The Court vacates the current trial date and sets a new trial date.

CONCLUSION

Plaintiff Interinsurance Exchange of the Automobile Club’s Motion to Vacate Court Order is GRANTED. The current trial date and final status conference are vacated. Trial is set for June 15, 2023, at 8:30 a.m. in Department 28 of the Spring Street Court House. The Final Status Conference is set for June 1, 2023, at 10:00 a.m. in Department 28 of the Spring Street Court House.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.