Judge: Katherine Chilton, Case: 20STLC08650, Date: 2022-08-25 Tentative Ruling

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Case Number: 20STLC08650     Hearing Date: August 25, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Michael James

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Michael James’s Motion to Set Aside/Vacate Dismissal is GRANTED.   The dismissal entered on April 12, 2022 is HEREBY VACATED.  An Order to Show Cause re: Failure to File Proof of Service is set for November 22, 2022 at 9:30 a.m. in Department 25, Spring Street Courthouse.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 NOT OK

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 NOT OK

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     NOT OK

OPPOSITION:          None filed as of August 23, 2022                [   ] Late                      [X] None

REPLY:                     None filed as of August 23, 2022                [   ] Late                      [X] None

ANALYSIS:

I.                Background

On October 13, 2020, Plaintiff Michael James (“Plaintiff”) filed a complaint against Defendant John Conway (“Defendant”) arising out of an alleged motor vehicle accident that took place on October 14, 2018, between Plaintiff and Defendant.

A Non-Jury Trial was set for April 12, 2022.  (10-13-20 First Amended Standing Order.)  On April 12, 2022, the Court noted that no appearances were entered by either party and thus, dismissed the Complaint without prejudice.  (4-12-22 Minute Order.)

On June 23, 2022, Plaintiff filed the instant Motion to Set Aside/Vacate Dismissal (“Motion”).  No opposition was filed (because Plaintiff has not served Defendant yet).

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 12, 2022, due to his attorney’s “mistake, surprise and/or excusable neglect.”  (Mot. p. 1.)  Specifically, Plaintiff’s attorney did not see the trial date on the First Amended Standing Order and was not aware of the trial date.  (Turner Decl. ¶ 2.)  Since the attorney did not know about the trial date, she did not make an appearance, and the case was dismissed.  (Ibid.)

Based on the timely request to vacate the dismissal supported by an attorney affidavit of fault, the unopposed Motion is GRANTED. 

IV.           Conclusion & Order

For the foregoing reasons,

Plaintiff Michael James’s Motion to Set Aside/Vacate Dismissal is GRANTED. The dismissal entered on April 12, 2022 is HEREBY VACATED. 

An Order to Show Cause re: Failure to File Proof of Service is set for November 22, 2022 at 9:30 a.m. in Department 25, Spring Street Courthouse.

Moving party is to give notice.