Judge: Deborah C. Servino, Case: 30-2021-01209321, Date: 2022-09-16 Tentative Ruling

On July 22, 2022, Jack R. Finnegan filed a document entitled “Motion to Vacate and Set Aside The Judgment of Improvident Dismissal, Memorandum of Points and Authorities, Declaration of Jack R. Finnegan, California Rules of court, Rules 8.104(a)(c), 8.108(a)(c).”  The motion is denied.

As a preliminary matter, Finnegan lacks standing to bring this motion.  On January 14, 2022, the court granted the motion for substitution by real party-in-interest, Richard A. Marshack, in his capacity as Chapter 7 Trustee for the Bankruptcy Estate of Plaintiff, Jark R. Finnegan, (“Trustee”).  The Trustee is the Plaintiff and real party-in-interest in this matter.  (1/14/2022 Minute Order.)  On that same day, the Trustee filed a request for dismissal with prejudice of the Complaint, which was entered as requested.  (Register of Action [“ROA”] 50.)

In any event, Code of Civil Procedure section 473, subdivision (b) has a discretionary relief component and a mandatory relief component and provides, in relevant 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. . . . 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.

Finnegan’s motion is untimely, as the dismissal was entered on January 14, 2022. The motion was not filed until July 22, 2022.  Furthermore, Finnegan fails to set forth any grounds for relief, i.e., there is no showing of “mistake, inadvertence, surprise or excusable neglect.”  Rather, he disagrees with the courts granting of the motion for substitution and then the subsequent dismissal.  No notice of appeal was taken on the dismissal order or substitution order.  Accordingly, the motion is denied.

The Trustee shall give notice of the ruling.