Judge: Frank M. Tavelman, Case: 23BBCV00833, Date: 2024-04-12 Tentative Ruling

Case Number: 23BBCV00833    Hearing Date: April 12, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO VACATE DISMISSAL

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ANALYSIS: 

Mercury Insurance Company (Plaintiff) brought this for subrogation action against Arthur Melkonyan (Melkonyan) and Gregor Darakchyan (Darakchyan).

On September 25, 2023, Plaintiff’s counsel requested dismissal of this action, with prejudice, in full. Dismissal was entered by the clerk that same day. Plaintiff now seeks vacatur of the dismissal, stating that they did not intend to dismiss the action as to Melkonyan.  

A voluntary dismissal of an entire action deprives the court of both subject matter and personal jurisdiction. (Paniagua v. Orange County Fire Auth. (2007) 149 Cal.App.4th 83, 89 [“[W]here the plaintiff has filed a voluntary dismissal of an action …, the court is without jurisdiction to act further …, and any subsequent orders of the court are simply void.”].) Even so, the Court has power under C.C.P § 473(b) to vacate a voluntary dismissal entered as a result of mistake, inadvertence, surprise, or excusable neglect. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254-255.)

Per C.C.P. § 473(b), a 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.” In addition, a court must vacate a default or dismissal when a motion for relief under C.C.P. § 473(b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise, or neglect unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.

Here, Plaintiff provides the declaration of their counsel Brian Tapper (Tapper). Tapper avers that he mistakenly requested the entirety of this action be dismissed after his client settled the matter with Darakchyan. (Tapper Decl. ¶ 2.) Tapper states that his request for dismissal as to the entire case was erroneous and that Plaintiff intended only to dismiss Darakchyan. (Tapper Decl. ¶ 3.) Tapper declares that this request was the result of an honest mistake and requests the Court vacate the dismissal. (Tapper Decl. ¶ 3.) Tapper further indicates that, should the dismissal be vacated, it is Plaintiff’s intent to dismiss as to Darakchyan only thereafter. (Tapper Decl. ¶ 6.)

A review of the proof of service shows that notice of this motion was served on both Melkonyan and Darakchyan. Neither party renders any opposition.

The Court is satisfied that Plaintiff has demonstrated mistake of counsel such as to entitle them to mandatory relief under C.C.P. § 473(b). The Court notes that prior to dismissal, an OSC re: Failure to File Proof of Service was scheduled for October 5, 2023. This OSC was continued from June 8, 2023 to allow Plaintiff more time to locate and serve Melkonyan. The Court also notes that proof of service on Melkonyan via substitute service was filed on August 16, 2023.

Given the foregoing, the motion to vacate dismissal is GRANTED. The Court sets a case management conference for August 14, 2024 at 9:00 a.m.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Mercury Insurance Company’s Motion to Vacate Dismissal came on regularly for hearing on April 12, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO VACATE DISMISSAL IS GRANTED.

THE COURT SETS A CASE MANAGEMENT CONFERENCE FOR AUGUST 14, 2024 AT 9:00 A.M.

PLAINTIFF IS TO PROVIDE NOTICE.  

IT IS SO ORDERED. 

DATE:  April 12, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles