Judge: Elaine W. Mandel, Case: 24SMCV00171, Date: 2024-07-11 Tentative Ruling

Case Number: 24SMCV00171    Hearing Date: July 11, 2024    Dept: P

Tentative Ruling

Gibbs v. Beattie, et al., Case No. 24SMCV00171

Hearing Date: July 11, 2024

Beattie’s Motion to Withdrawing Appearance and Answer  - UNOPPOSED

Gibbs alleges injuries stemming from an automobile accident with defendant Beattie, who was driving a rented vehicle. Beattie moves for an order withdrawing her appearance and answer, under CCP 128 and/or section 473(b). No opposition was filed.

“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.” Code Civ. Proc., §473(b). Application for this relief shall be made within a reasonable time, in no case exceeding six months, after judgment, dismissal, order, or proceeding was taken. Id.  “[T]he 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.”  Id.

Beattie argues her lawyer mistakenly thought she was one of the insured defendants who were served. However, Beattie was never served, so counsel had no authority to respond on her behalf. Per the declaration of counsel, attorney Lake sought to resolve the issue, but communication with Gibbs’ counsel did not yield a stipulation. Id. ¶ 4. The motion is unopposed.

CCP §473(b) does not apply; the statute applies to judgments and defaults, not improperly filed answers. However, as plaintiff has not opposed, the court uses its discretion to allow defendant to withdraw the improperly filed answer. Plaintiff thereafter may serve defendant. GRANTED.