Judge: Katherine Chilton, Case: 21STLC04925, Date: 2023-02-28 Tentative Ruling

Case Number: 21STLC04925     Hearing Date: February 28, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Kendra Diaz

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

            Plaintiff Kendra Diaz’s Motion to Vacate, Lift and Set Aside Dismissal of Plaintiff’s Complaint is GRANTED.  Dismissal entered on January 3, 2023, is hereby VACATED.

Order to Show Cause Re: Failure to File Proof of Service is set for MAY 2, 2023 at 9:30 a.m. in Department 25 of the Spring Street Courthouse.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 NONE

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 NONE

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     NONE

OPPOSITION:          None filed as of February 24, 2023.                     [   ] Late                      [X] None

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

ANALYSIS:

I.                Background

On July 6, 2021, Plaintiff Kendra Diaz (“Plaintiff”), filed an action against Defendant Gheorghe Sebastian Vasilescu (“Defendant”), arising out of an alleged motor vehicle accident.

            Trial was scheduled for January 3, 2023.  (7-6-2 Third Amended Standing Order.)  On January 3, 2023, the Court noted that no appearances were entered for Plaintiff or Defendant and dismissed the Complaint without prejudice.  (1-3-23 Minute Order.)

            On January 17, 2023, Plaintiff filed the instant Motion to Vacate, Lift, and Set Aside Dismissal of Plaintiff’s Complaint (“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 January 3, 2023, the date set for Non-Jury Trial, the Court noted that no appearances had been entered by Plaintiff or Defendant and dismissed the Complaint without prejudice.  (1-3-23 Minute Order.)

            On January 17, 2023, Plaintiff filed the instant Motion to Vacate, Lift and Set Aside Dismissal.  Plaintiff seeks to set aside dismissal of the Complaint on the ground that dismissal was entered because of “mistake, inadvertence, surprise, and/or excusable neglect by Plaintiff's attorney.”  (Mot. p. 3.)  Specifically, Plaintiff’s counsel was unaware of the trial and “did not receive prior notice of the scheduled appearance or it was inadvertently not calendered [sic] through no fault of plaintiff.”  (Ibid. at ¶¶ 5, 9-10.)  Moreover, counsel’s office moved in August and September 2022 and as a result, “mail delivery has been compromised during the process.”  (Ibid. at ¶ 6.)

            Plaintiff’s counsel adds that an investigator is attempting to locate Defendant for service as the address listed on Defendant’s driver’s license is that of a UPS store.  (Ibid. ¶ 11.)

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 January 3, 2023, is vacated.

IV.           Conclusion & Order

For the foregoing reasons,

            Plaintiff Kendra Diaz’s Motion to Vacate, Life and Set Aside Dismissal of Plaintiff’s Complaint is GRANTED.  Dismissal entered on January 3, 2023, is hereby VACATED.

Order to Show Cause Re: Failure to File Proof of Service is set for MAY 2, 2023 at 9:30 a.m. in Department 25 of the Spring Street Courthouse.

Moving party is to give notice.