Judge: Katherine Chilton, Case: 19STLC09038, Date: 2022-11-07 Tentative Ruling

Case Number: 19STLC09038     Hearing Date: November 7, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Wawanesa General Insurance

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Wawanesa General Insurance’s Motion to Set Aside/Vacate Dismissal is GRANTED.  Dismissal entered on October 18, 2021, is hereby VACATED and Plaintiff’s Complaint is reinstated.

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))                     NO

OPPOSITION:          None filed as of November 2, 2022                        [   ] Late                      [X] None

REPLY:                     None filed as of November 2, 2022                        [   ] Late                      [X] None

ANALYSIS:

I.                Background

On October 1, 2019, Plaintiff Wawanesa General Insurance (“Plaintiff”) filed a subrogation action against Defendants Jonathan Neria (“Jonathan”) and Romuel Neria (“Romuel”), (collectively “Defendants”) arising out of an alleged motor vehicle accident that occurred on February 14, 2019.

On October 29, 2019, Defendant Jonathan, in propria persona, filed an Answer.  On February 14, 2020, the Court, pursuant to Plaintiff’s Request, entered default against Defendant Romuel Neria.  (2-14-20 Request for Entry of Default.)

On March 30, 2021, based on Plaintiff’s request, the Court continued Non-Jury Trial to August 11, 2021.  (3-30-21 Minute Order.)  On August 11, 2021, the Court noted that no appearances were entered by Defendant Jonathan, placed trial off calendar, and scheduled Order to Show Cause Re: Striking Answer for Defendant’s Failure to Appear on October 18, 2021.  (8-11-21 Minute Order.)

On October 18, 2021, the Court noted that no appearances were entered by either party and dismissed the Complaint without prejudice.  (10-18-21 Minute Order.)

On April 20, 2022, Plaintiff filed the instant Motion to Set Aside/Vacate Dismissal (“Motion”).  Plaintiff also filed an Amended Notice of Motion on September 7, 2022, correcting the date of the hearing on the Motion.

On October 3, 2022, the Court continued the hearing on the Motion to allow Plaintiff an opportunity to file and serve a corrected Notice of Motion.  (10-3-22 Minute Order.)

On October 12, 2022, Plaintiff filed an amended Notice of Motion and Motion.

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.)

III.            Discussion

On October 3, 2022, the Court noted that Plaintiff has served and filed a defective Amended Notice of Hearing that listed the wrong address for the courthouse where the hearing on the Motion would be heard and, thus, continued the hearing on the Motion.  (10-3-22 Minute Order.)  On October 12, 2022, Plaintiff filed a corrected Notice and Motion.  Plaintiff also included Proof of Service showing that Defendants were served with the Amended Notice and Motion by mail on October 12, 2022.  (10-12-22 Amended Mot. p. 10.)  Thus, Plaintiff has complied with the Court’s October 3, 2022, Order and California Rules of Court, rule 3.1110(b).

Plaintiff seeks to set aside dismissal of the Complaint on the ground that dismissal was entered due to Plaintiff’s “mistake, inadvertence, surprise, or excusable neglect.”  (10-12-22 Amended Mot. p. 1; Nivinskus Decl. ¶ 2.)  Specifically, the October 18, 2021, hearing date “was not calendared on the plaintiff’s counsel’s calendar and thus the plaintiff’s appearing counsel did not appear on October 18, 2021.”  (Ibid. at pp. 3-4; Nivinskus Decl. ¶ 4; Diaz Decl. ¶¶ 3-4.)  Plaintiff found out about the dismissal after receiving the notice and order from the Court.  (Amended Mot. p. 4; Nivinskus Decl. ¶ 3.)  Plaintiff argues that the Motion was filed timely pursuant to Code of Civil Procedure § 473(b).  (Amended Mot. p. 4; Nivinskus Decl. ¶ 7.)

The Court finds that Plaintiff’s motion is untimely, as it was filed on April 20, 2022, more than six months after the entry of dismissal on October 18, 2021.  Thus, the Court cannot set aside the dismissal pursuant to Code of Civil Procedure § 473(b).

“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).)

Here, the Court may rely on its equitable powers to grant relief based on Counsel’s inadvertence or excusable neglect, which resulted in the dismissal of the entire case.  Thus, Plaintiff’s Motion to Set Aside/Vacate Dismissal is GRANTED.

IV.           Conclusion & Order

For the foregoing reasons,

Plaintiff Wawanesa General Insurance’s Motion to Set Aside/Vacate Dismissal is GRANTED.  Dismissal entered on October 18, 2021, is hereby VACATED and Plaintiff’s Complaint is reinstated.

Trial is set for January 19, 2023 at 8:30 a.m. in Department 25, Spring Street Courthouse.

Moving party is to give notice.