Judge: Kerry Bensinger, Case: 21STCV36548, Date: 2023-07-11 Tentative Ruling

Case Number: 21STCV36548    Hearing Date: July 11, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     July 11, 2023                          TRIAL DATE:  N/A

CASE:                                Timothy Poindexter v. Ace Rent A Car Company LLC, et al.

CASE NO.:                 21STCV36548

MOTION TO SET ASIDE DISMISSAL

MOVING PARTY:               Plaintiff Timothy Poindexter

RESPONDING PARTY:     No opposition

I.          BACKGROUND

            On October 4, 2021, Plaintiff, Timothy Poindexter, brought this motor vehicle negligence action against Defendants, Ace Rent A Car Company LLC and Damien Lawrence, for injuries and damages arising from a motor vehicle accident.

On April 3, 2023, the Court dismissed Plaintiff’s Complaint without prejudice after Plaintiff did not appear at the final status conference and non-jury trial. 

On June 8, 2023, Plaintiff filed the instant motion to set aside the dismissal under Code of Civil Procedure section 473, subdivision (b). 

The motion is unopposed.

II.        LEGAL STANDARD

Code of Civil Procedure section 473, subdivision (b) provides that a court may “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”  In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.”  (Code Civ. Proc., § 473, subd. (b).)   

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”  (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Cal.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”].)   

III.      DISCUSSION

Plaintiff’s counsel provides her declaration attesting to the fact that the dismissal was taken due to her neglect.  She attests that she failed to calendar the trial date and final status conference date and takes responsibility for the oversight.  (See Declaration of Virginia Narian.)  Based on the above, the Court finds that the dismissal was taken due to Plaintiff’s attorney’s excusable neglect.  Further, the motion was filed in a reasonable time after the dismissal was entered. 

IV.       CONCLUSION 

Based on the foregoing, the motion to set aside the April 3, 2022 dismissal is GRANTED and the action is reinstated.  The Court notes that Plaintiff has not filed proof of service of the summons and complaint on Defendant Damien Lawrence.  The Court sets an OSC re: Proof of Service and Trial Setting Conference for July 26, 2023 at 8:30 a.m. in Department 27 of the Spring Street Courthouse.¿ Failure to serve the defendant with summons within two years after the action is commenced against the defendant may result in dismissal for delay in prosecution.  (Code Civ. Proc. 583.420, subd. (a)(1).)        

Moving party to give notice. 

Dated:   July 11, 2023                                 ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.