Judge: Katherine Chilton, Case: 20STLC09357, Date: 2023-04-25 Tentative Ruling

Case Number: 20STLC09357     Hearing Date: April 25, 2023    Dept: 25

PROCEEDINGS:      MOTION TO VACATE DISMISSAL

MOVING PARTY:   Plaintiffs Augustin Soriano and Ana Galdamez

RESP. PARTY:         None

MOTION TO SET VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

            Plaintiffs Augustin Soriano and Ana Galdamez’s Motion to Vacate Dismissal of Case GRANTED.  Dismissal entered on December 1, 2022 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 April 24, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of April 24, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On November 5, 2020, Plaintiffs Augustin Soriano and Ana Galdamez (“Plaintiffs”) filed an action against Defendant Anaia Skinner (“Defendant”), for motor vehicle and general negligence.

            Defendant was substitute served on August 23, 2022 but no answer was filed.  On December 1, 2022, an Order to Show Cause re: Defendant’s Filing of An Answer or Entry of Default was scheduled.  There was no appearance for either party so the Court ordered the Complaint filed by Plaintiffs to be dismissed without prejudice. (12-01-22 Minute Order). 

On March 21, 2023, Plaintiff filed the instant Motion for Order Vacating 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 1, 2022, the date set for an Order to Show Cause re: Filing of An Answer or Entry of Default, the Court noted that no appearance was entered by Plaintiff and dismissed the Complaint without prejudice.  (12-01-22 Minute Order.)

            On March 21, 2023, Plaintiff filed the instant Motion for An Order Vacating Dismissal, seeking to set aside dismissal of the Complaint based on plaintiff’s counsel’s affidavit of fault and “mistake, inadvertence, and excusable neglect.”  (Mem. p. 1-2.)  Specifically, Plaintiffs’ counsel “mistakenly never calendared” the Order to Show Cause.  ((Haralambopoulos Decl. ¶ 4). 

The Court finds that Plaintiffs’ motion is timely and accompanied by an attorney’s declaration of fault.  Accordingly, Plaintiffs’ Motion is GRANTED, and dismissal entered on December 1, 2022 is vacated.

IV.           Conclusion & Order

For the foregoing reasons,

            Plaintiffs Augustin Soriano and Ana Galdamez’s Motion for An Order Vacating Dismissal is GRANTED.  Dismissal entered on December 1, 2022, is hereby VACATED.

Plaintiff is ordered to give notice to Defendant’s counsel at CIGA.  An Order to Show Cause re: filing of answer or entry of default is set for June 22, 2023 at 9:30 a.m. in Department 25, Spring Street Courthouse.