Judge: Katherine Chilton, Case: 19STLC02574, Date: 2022-09-14 Tentative Ruling

Case Number: 19STLC02574     Hearing Date: September 14, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Interinsurance Exchange of the Auto Club

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Interinsurance Exchange of the Auto Club’s Motion to Set Aside/Vacate Dismissal is GRANTED.  The Court orders the dismissal entered on April 7, 2022, as to the entire action, set aside and vacated.

An Order to Show Cause Re: Entry of Default Judgment/Dismissal and Order to Show Cause: Re Why Sanctions Should Not be Imposed for Plaintiff's Failure to Comply with California Rules of Court Section 3.110(h) is set for November 10, 2022 at 9:30 a.m. in Department 25, Spring Street Courthouse.

SERVICE: 

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

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

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

OPPOSITION:          None filed as of September 8, 2022                        [   ] Late                      [X] None

REPLY:                     None filed as of September 8, 2022                        [   ] Late                      [X] None

ANALYSIS:

I.                Background

On March 14, 2019, Plaintiff Interinsurance Exchange of the Auto Club (“Plaintiff”) filed a complaint against Defendants Francisco Barba (“Barba”) and Cristina Esmera Alcala (“Alcala”), (collectively “Defendants”) for subrogation and indebtedness.  The action arose out of an alleged automobile accident between Defendant Alcala, on the one hand, and an individual insured by Plaintiff’s automobile policy, on the other hand.  (Compl. p. 2.)  Defendant Barba allegedly owns the vehicle involved in the collision and permitted Defendant Alcala to drive the vehicle.  (Compl. ¶ 9.)

At the request of Plaintiff, default was entered against Defendant Barba on September 16, 2019, and against Defendant Alcala on October 7, 2020.

On January 20, 2022, the Court continued hearings on Order to Show Cause Re: Entry of Default Judgment/Dismissal and Order to Show Cause: Re Why Sanctions Should Not be Imposed for Plaintiff's Failure to Comply with California Rules of Court Section 3.110(h) to April 7, 2022.   (1-20-22 Minute Order.)  At the April 7, 2022, hearing, the Court noted that there were no appearances entered by either party and dismissed the Complaint without prejudice.  (4-7-22 Minute Order.)

On July 14, 2022, Plaintiff filed the instant Motion for Order Vacating Entry of Dismissal (“Motion”).  No opposition was 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.)

III.            Discussion

Plaintiff’s Motion is timely.  Plaintiff seeks to set aside dismissal entered on April 7, 2022, due to Plaintiff’s counsel’s “mistake, inadvertence surprise or neglect.”  (Mot. p. 1.)  Specifically, Counsel explains that he assigned the hearing to his appearance attorney service to inform the court that the default judgment package would be resubmitted; however, the appearance attorney was at another hearing and failed to make an appearance.  (Schwarz Decl. ¶¶ 3-4.)  In his declaration, the appearance attorney states that he “was retained in advance by counsel for plaintiff to make an appearance on plaintiff’s behalf” in the instant case; however, he “was in another Courtroom at the time this matter was called and missed the hearing.”  (Devlin Decl. ¶¶ 2, 4.)  He apologizes to the Court for the mistake and asks the Court to reinstate the matter.  (Ibid. at ¶ 4.)

Based on the timely request to vacate the dismissal supported by the attorneys’ affidavit of fault, the Motion is GRANTED.

IV.           Conclusion & Order

For the foregoing reasons, Plaintiff Interinsurance Exchange of the Auto Club’s Motion to Set Aside/Vacate Dismissal is GRANTED.  The Court orders the dismissal entered on April 7, 2022, as to the entire action, set aside and vacated.

An Order to Show Cause Re: Entry of Default Judgment/Dismissal and Order to Show Cause: Re Why Sanctions Should Not be Imposed for Plaintiff's Failure to Comply with California Rules of Court Section 3.110(h) is set for November 10, 2022 at 9:30 a.m. in Department 25, Spring Street Courthouse.

Moving party is to give notice.