Judge: Katherine Chilton, Case: 20STLC04367, Date: 2022-08-08 Tentative Ruling
Case Number: 20STLC04367 Hearing Date: August 8, 2022 Dept: 25
PROCEEDINGS: MOTION TO SET ASIDE/VACATE DISMISSAL
MOVING PARTY: Plaintiff
Lexani Wheel Corporation
RESP. PARTY: None
MOTION TO SET ASIDE/VACATE DISMISSAL
(CCP § 473(b))
TENTATIVE RULING:
Plaintiff Lexani
Wheel Corporation’s Motion to Set Aside/Vacate Dismissal is GRANTED. The dismissal entered on November 18, 2021, is
HEREBY VACATED.
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 August 3,
2022. [ ]
Late [X] None
REPLY: None filed as
of August 3, 2022. [ ]
Late [X] None
ANALYSIS:
I.
Background
On May 21, 2020, Plaintiff Lexani Wheel Corporation
(“Plaintiff”) filed an action against Defendant Rush Wheels, Inc. (“Defendant”)
for 1) account stated, 2) open book account, and 3) money had and received.
No responsive pleadings were filed, so on July 8, 2020,
Plaintiff filed a Request for Entry of Default; default was entered on the same
day.
On November 18, 2021, the Court dismissed the case
without prejudice as there were no appearances at the non-jury trial by either
party. (11-18-21 Minute Order.)
On May 16, 2022, Plaintiff filed
the instant Motion to Set Aside/Vacate Dismissal. 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 seeks to set aside the dismissal
entered on November 18, 2021, due to Counsel’s “mistake and inadvertence and
surprise.” (Mot. p. 5.) Counsel states that he cannot locate the
trial setting notice. (Sperling Decl. ¶
4.). Counsel explains that due to the COVID-19 pandemic, he and his staff have
been working from home and assumes that “either the notice was not received or
it became lost in the ‘shuffle’ of papers.”
(Ibid. at ¶ 5.) As a
result, the trial date was not calendared.
(Ibid. at ¶ 5.) Therefore,
Counsel did not make an appearance on November 18. (Ibid.)
The Court finds that Plaintiff’s
Motion is timely and was filed with Counsel’s declaration attesting to Counsel’s
mistake, inadvertence, and surprise in failing to appear at the trial date set on
November 18, 2021. (See Sperling
Decl.) Plaintiff’s Motion to Set
Aside/Vacate Dismissal is GRANTED.
Plaintiff also attaches documents
required for default judgment to the instant Motion. The Court orders Plaintiff to refile these
documents separately after receiving notice of this Order.
IV.
Conclusion
& Order
For the foregoing reasons, Plaintiff
Lexani Wheel Corporation’s Motion to Set Aside/Vacate Dismissal is
GRANTED. The dismissal entered on November
18, 2021, is HEREBY VACATED.
An Order to
Show Cause re: Entry of Default Judgment is set for November 3, 2022 at 9:30
a.m. in Department 25, Spring Street Courthouse.
Moving party is ordered to give
notice.