Judge: Katherine Chilton, Case: 21STLC05409, Date: 2023-03-01 Tentative Ruling

Case Number: 21STLC05409    Hearing Date: March 1, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Amica Mutual Insurance Company

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

            Plaintiff Amica Mutual Insurance Company’s Motion to Vacate Dismissal is GRANTED.  Dismissal entered on January 23, 2023, 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 26, 2023.                     [   ] Late                      [X] None

REPLY:                     None filed as of February 26, 2023.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On July 26, 2021, Plaintiff Amica Mutual Insurance Company (“Plaintiff”), filed an action against Defendants Taijahn Linzy Reese (“Reese”) and Linda Anne Hollins (“Hollins”), (collectively “Defendants”) for automobile subrogation.

On January 10, 2022, Plaintiff filed a Motion to Enforce Settlement Agreement and Enter Judgment Against Defendant Reese.  The Court placed the Motion off calendar on May 17, 2022, as Plaintiff did not comply with the Court’s order to file supplemental papers.  (5-17-22 Minute Order.)

Non-Jury Trial was scheduled for January 23, 2023.  (7-26-21 Third Amended Standing Order.)  On January 23, 2023, the Court noted that no appearances were entered for Plaintiff or Defendants and dismissed the Complaint without prejudice.  (1-23-23 Minute Order.)

            On January 24, 2023, Plaintiff filed the instant Motion to 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

On January 23, 2023, the date set for Non-Jury Trial, the Court noted that no appearances had been entered by Plaintiff or Defendants and dismissed the Complaint without prejudice.  (1-23-23 Minute Order.)

            On January 24, 2023, Plaintiff filed the instant Motion to Vacate Dismissal.  Plaintiff seeks to set aside dismissal of the Complaint on the ground that dismissal was entered because of “mistake, inadvertence, surprise and excusable neglect.”  (Mot. pp. 1-2.)  Specifically, Plaintiff’s counsel “inadvertently forgot to properly calendar the January 23, 2023 court hearing” and due to his mistake and failure to appear, the Court dismissed the case.  (Tapper Decl. ¶ 3.)  Counsel has attached a copy of his office court calendar in support of his declaration.  (Ibid., Ex. A.)  Furthermore, Counsel informs the Court that Plaintiff intends to file another Motion to Enforce the Settlement Agreement against Defendant Reese.  (Ibid. at ¶ 4.)

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 23, 2023, is vacated.

IV.           Conclusion & Order

For the foregoing reasons,

            Plaintiff Amica Mutual Insurance Company’s Motion to Vacate Dismissal is GRANTED.  Dismissal entered on January 23, 2023, is hereby VACATED.

            A Status Conference is set for May 3, 2023 at 9:30 a.m. in Department 25, Spring Street Courthouse.

Moving party is to give notice.