Judge: Katherine Chilton, Case: 20STLC06308, Date: 2023-02-15 Tentative Ruling

Case Number: 20STLC06308     Hearing Date: February 15, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff IDS Property Casualty Insurance Company

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

            Plaintiff IDS Property Casualty Insurance Company’s Motion to Vacate Entry of Dismissal is GRANTED.  Dismissal entered on December 15, 2022, as to Defendant Jose Nevarez, is hereby VACATED.

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 July 28, 2020, Plaintiff IDS Property Casualty Insurance Company (“Plaintiff”) filed an action against Defendants Jose Nevarez (“Nevarez”) and Alan Gonzalez (“Gonzalez”), (collectively “Defendants”) for subrogation and indebtedness.

            On January 25, 2021, based on Plaintiff’s request, default was entered against Defendants Nevarez and Gonzalez.  (1-25-21 Request for Entry of Default.)  On December 9, 2021, based on Plaintiff’s request, the Court dismissed Does 1 through 100.  (12-9-21 Request for Dismissal.)

            Non-Jury Trial scheduled for January 25, 2022, was vacated as Plaintiff’s counsel informed the Court of Plaintiff’s intent to pursue entry of default judgment.  (1-25-22 Minute Order.)

            On March 14, 2022, Plaintiff filed the First Amended Complaint (“FAC”).  Default was entered as to Defendant Nevarez on October 6, 2022.  (10-6-22 Request for Entry of Default.)

            On December 15, 2022, based on Plaintiff’s request, the Court dismissed Defendant Nevarez without prejudice.  (12-15-22 Request for Dismissal.)

On January 5, 2023, Plaintiff filed the instant Motion for Order Vacating Entry of Dismissal (“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 December 15, 2022, based on Plaintiff’s request, the Court dismissed Defendant Nevarez without prejudice.  (12-15-22 Request for Dismissal.)

            On January 5, 2023, Plaintiff filed the instant Motion for Order Vacating Entry of Dismissal.  Plaintiff seeks to set aside dismissal of Defendant Nevarez on the ground that dismissal was entered due to Plaintiff’s counsel’s “mistake, inadvertence surprise or neglect.”  (Mot. p. 2.)  Specifically, Plaintiff’s counsel “mistakenly submitted dismissal request for Jose Nevarez instead of for Alan Gonzalez.”  (Schwarz Decl. ¶ 4.)  Counsel manages a high-volume practice, and the dismissal was due to his “mistake and neglect.”  (Ibid. at ¶¶ 5-6.)

The Court finds that Plaintiff’s motion is timely and accompanied by an attorney’s declaration of fault.  Accordingly, Plaintiff’s Motion is GRANTED, and dismissal entered on December 15, 2022, as to Defendant Jose Nevarez, is vacated.

IV.           Conclusion & Order

For the foregoing reasons,

            Plaintiff IDS Property Casualty Insurance Company’s Motion to Vacate Entry of Dismissal is GRANTED.  Dismissal entered on December 15, 2022, as to Defendant Jose Nevarez, is hereby VACATED.

Moving party is to give notice.