Judge: Katherine Chilton, Case: 18STLC14918, Date: 2023-02-16 Tentative Ruling

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Case Number: 18STLC14918     Hearing Date: February 16, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff State Farm Mutual Automobile Insurance Company

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff State Farm Mutual Automobile Insurance Company’s Motion to Set Aside/Vacate Dismissal is DENIED.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          None filed as of February 8, 2023.                       [   ] Late                      [X] None

REPLY:                     None filed as of February 8, 2023.                       [   ] Late                      [X] None

ANALYSIS:

I.                Background

On December 13, 2018, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed an action against Eric Anderson (“Defendant”) for subrogation.

On December 6, 2019, pursuant to Plaintiff’s request, default was entered against Defendant.  (12-6-19 Request for Default.)  Default judgment was entered against Defendant on February 11, 2020.  (2-11-20 Default Judgment.)

On August 27, 2020, the Court denied Defendant's Motion to Quash Service of Summons, filed on March 2, 2020.  (8-27-20 Minute Order.)  On February 10, 2021, the Court vacated its August 27, 2020, Order.  (2-10-21 Minute Order.)  The Court granted Defendant’s Motion to Set Aside/Vacate Default and Default Judgment and request to quash service of summons.  (4-15-21 Minute Order.)

On July 21, 2021, at an Order to Show Cause Re: Failure to File Proof of Service, the Court noted that no appearances were entered by either party and dismissed the Complaint without prejudice.  (7-21-21 Minute Order.)  On March 14, 2022, the Court denied Plaintiff’s Motion to Set Aside/Vacate Dismissal, filed on January 24, 2022, on the basis that it was not filed within six months of dismissal, as required by Code of Civil Procedure § 473(b).  (3-14-22 Minute Order.)

On January 3, 2023, Plaintiff filed the instant Motion to Set Aside/Vacate Dismissal (“Motion”).  Plaintiff has submitted the Motion on the moving papers and will not appear at the hearing.  (Mot. p. 2.)

No opposition has been filed.

II.              Legal Standard

Pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief is available to parties when a case is dismissed.  Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  (Code of Civ. Proc. § 473(b).)  Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”  (Ibid.)  Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.  (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“‘[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.)

“Even where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment or order on equitable grounds where a party establishes that the judgment or order was void for lack of due process or resulted from extrinsic fraud or mistake.” (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228; Bacon v. Bacon (1907) 150 Cal. 477, 491-92; Olivera v. Grace, 122 P.2d 564, 567-68; Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147 (“There are four grounds which a court, utilizing its equity capacity may rely upon to provide relief from default.  Those areas are (1) void judgment, (2) extrinsic fraud, (3) constructive service, and (4) extrinsic mistake.”)  In limited civil cases, grounds for equitable relief also include “inadvertence or excusable neglect.”  (Code of Civ. Proc. § 86(b)(3).)

III.            Discussion

On July 21, 2021, at an Order to Show Cause Re: Failure to File Proof of Service, the Court noted that no appearances were entered by either party and dismissed the Complaint without prejudice.  (7-21-21 Minute Order.)  On March 14, 2022, the Court denied Plaintiff’s Motion to Set Aside/Vacate Dismissal, filed on January 24, 2022, on the basis that it was not filed within six months of dismissal, as required by Code of Civil Procedure § 473(b).  (3-14-22 Minute Order.)

On January 3, 2023, more than 9 months later, Plaintiff brought the instant Motion seeking to set aside dismissal entered on July 21, 2021, pursuant to Code of Civil Procedure § 187.  Plaintiff’s counsel explains that “[d]ue to a clerical error…[the] hearing was not properly calendared and plaintiff did not appear at the hearing.”  (Anderson Decl. ¶ 5.)  Plaintiff argues that pursuant to § 187, the Court has “jurisdiction to take appropriate action in the interest of justice when the course of proceeding is not specifically provided for by the Code of Civil Procedure or other statute.”  (Memorandum p. 2.)  Plaintiff also argues that it would “suffer extreme bias if it is prevented from litigating this case.”  (Ibid.)

Although the Court may rely on its inherent powers to vacate the dismissal on equitable grounds, Counsel does not provide any reason for the Court to vacate the dismissal nearly 19 months after it was dismissed.  Additionally, the Court may, on its own motion, dismiss an action if “[s]ervice is not made within two years after the action is commenced against the defendant.”  (Code of Civ. Proc. § 583.420(a)(1).)  Here, the Court granted Defendant’s Motion to Quash Service of Summons on April 15, 2021.  (4-15-21 Minute Order.)  Plaintiff did not file any proof that Defendant was properly served after the Court’s Order.

Accordingly, Plaintiff’s Motion to Set Aside/Vacate Dismissal is DENIED.

IV.           Conclusion & Order

For the foregoing reasons,

Plaintiff State Farm Mutual Automobile Insurance Company’s Motion to Set Aside/Vacate Dismissal is DENIED.

Moving party is to give notice.