Judge: Katherine Chilton, Case: 20STLC02386, Date: 2023-01-10 Tentative Ruling

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Case Number: 20STLC02386     Hearing Date: January 10, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Barbara Boe

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Barbara Boe’s Motion to Set Aside/Vacate Dismissal is GRANTED.  Dismissal entered on May 25, 2022, is hereby VACATED.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 NONE

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 NONE

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     NONE

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

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

ANALYSIS:

I.                Background

On March 10, 2020, Plaintiff Barbara Boe (“Plaintiff”) filed an action against Defendant Michelle Angela Krolikowski (“Defendant”) arising out of an automobile accident.

On September 7, 2021, the date set for Non-Jury trial, the Court noted that no appearance was entered by the Plaintiff and dismissed the Complaint without prejudice.  (3-10-20 First Amended Standing Order; 9-7-21 Minute Order.)

On March 28, 2022, the Court granted Plaintiff’s Motion to Vacate Dismissal, filed on February 22, 2022.  (3-28-22 Minute Order.)

            On May 25, 2022, the date scheduled for Order to Show Cause Re: Failure to File Proof of Service, the Court noted that no appearance was entered by the Plaintiff and dismissed the Complaint without prejudice.  (5-25-22 Minute Order.)

            On November 22, 2022, Plaintiff filed the instant Motion to Set Aside/Vacate Dismissal (“Motion”).

            No opposition has been filed.  Plaintiff has not filed proof that Defendant has been served with the Complaint or the instant Motion.

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 May 25, 2022, the date scheduled for Order to Show Cause Re: Failure to File Proof of Service, the Court noted that no appearance was entered by the Plaintiff and dismissed the Complaint without prejudice.  (5-25-22 Minute Order.)

            On November 22, 2022, Plaintiff filed the instant Motion to Set Aside/Vacate Dismissal.  Plaintiff seeks to set aside dismissal of the Complaint on the ground that dismissal was entered due to counsel’s fault.  (Mot. p. 2.)  Specifically, Plaintiff’s counsel did not calendar the date of the OSC and did not appear at the hearing.  (Moest Decl. ¶ 3.)  Counsel feels “embarrassed by the double failure on [his] part, and will be extremely careful to see that future deadlines are met.”  (Ibid. at ¶ 4.)  Counsel anticipates that the case will settle; however, he states that “the carrier for defendant will not settle unless the case is reinstated.”  (Ibid.)  Counsel does not believe that Defendant will be at a disadvantage if dismissal is vacated.  (Ibid. at ¶ 5.)

The Court finds that Plaintiff’s motion is timely and accompanied by Plaintiff’s counsel’s declaration of fault.  For this reason, Plaintiff’s Motion is GRANTED, and dismissal entered on May 25, 2022, is hereby VACATED.

IV.           Conclusion & Order

For the foregoing reasons,

Plaintiff Barbara Boe’s Motion to Set Aside/Vacate Dismissal is GRANTED.  Dismissal entered on May 25, 2022, is hereby VACATED.

An Order to Show Cause re: Failure to File Proof of Service and an Order to Show Cause re: Why Sanctions Should Not Be Imposed for Failure to Comply with Rule of Court 3.110(b) or, in the Alternative, Why The Case Should Not Be Dismissed per CCP § 583.210(a) are set for March 29, 2023 at 9:30 a.m. in Department 25.

Moving party is to give notice.