Judge: Katherine Chilton, Case: 20STLC09112, Date: 2022-10-17 Tentative Ruling

Case Number: 20STLC09112     Hearing Date: October 17, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Steadfast Insurance Company

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Steadfast Insurance Company’s Motion to Set Aside/Vacate Dismissal is GRANTED.  The dismissal entered on April 27, 2022, 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 October 11, 2022                      [   ] Late                      [X] None

REPLY:                     None filed as of October 11, 2022                      [   ] Late                      [X] None

ANALYSIS:

I.                Background

On October 28, 2020, Plaintiff Steadfast Insurance Company (“Plaintiff”) filed a subrogation action against Defendant Saul Ortiz (“Defendant”) arising out of an alleged motor vehicle accident.

On September 28, 2021, upon Plaintiff’s request, default was entered against Defendant.     (9-28-21 Request for Entry of Default/Judgment.)

Non-Jury Trial was scheduled for April 27, 2022.  (10-28-20 First Amended Standing Order.)  On April 27, 2022, the Court noted that no appearances were entered by either party and dismissed the Complaint without prejudice.  (4-27-22 Minute Order.)

On September 14, 2022, Plaintiff filed the instant Motion to Set Aside/Vacate 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

Plaintiff seeks to set aside dismissal of the Complaint on the ground that dismissal was entered due to Plaintiff’s “mistake, inadvertence, surprise and excusable neglect.”  (Mot. p. 2; Tapper Decl. ¶ 2.)  Specifically, Plaintiff’s counsel mis-calendared the April 27 hearing and failed to make an appearance.  (Tapper Decl. ¶¶ 2-3.)  Plaintiff’s counsel has submitted a sworn declaration apologizing for the mistake and requesting the Court to vacate the dismissal.  (Ibid.)

The Court finds that Plaintiff’s Motion is timely.  Plaintiff’s counsel has shown that Plaintiff’s failure to appear at the April 27 hearing was due to counsel’s mistake.  For this reason, the Court GRANTS Plaintiff’s Motion.

IV.           Conclusion & Order

For the foregoing reasons,

Plaintiff Steadfast Insurance Company’s Motion to Set Aside/Vacate Dismissal is GRANTED.  The dismissal entered on April 27, 2022, is hereby VACATED.

Moving party is to give notice.