Judge: Kerry Bensinger, Case: 21STCV44720, Date: 2023-10-09 Tentative Ruling

Case Number: 21STCV44720    Hearing Date: October 9, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     October 9, 2023                                 TRIAL DATE:  Vacated

CASE:                                Interinsurance Exchange of the Automobile Club v. Jeffery Allan Klein

CASE NO.:                 21STCV44720

MOTION TO SET ASIDE DISMISSAL

MOVING PARTY:               Plaintiff Interinsurance Exchange of the Automobile Club

RESPONDING PARTY:     No opposition

I.          BACKGROUND

            On December 7, 2021, Plaintiff, Interinsurance Exchange of the Automobile Club, filed a complaint against Defendant, Jeffery Allan Klein, for injuries arising from a motor vehicle accident involving Defendant and Plaintiff’s insured. 

            On June 6, 2023, after Plaintiff failed to appear at the Final Status Conference and at trial, the Court dismissed the Complaint pursuant to CCP 581(b)(3).  The Clerk of the Court mailed notice of the Court’s order on the same day.

On July 17, 2023, Plaintiff filed this 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 his declaration attesting to the fact that the dismissal was taken due to counsel’s mistake, inadvertence, surprise, or excusable neglect.  Counsel states the dates for the Final Status Conference and trial were not properly calendared.  (See Declaration of Deborah L. McClain.)  For this reason, Plaintiff seeks an order setting aside dismissal and reinstating the action.

The Court finds Plaintiff is entitled to an order vacating the dismissal of his case.  Plaintiff’s counsel has submitted a declaration showing the dismissal was taken due to inadvertence and neglect.  Further, Plaintiff sought relief well within the statutory time period of six months.  As this motion is unopposed, the Court finds no prejudice will result from setting aside the dismissal and reinstating the action.

IV.       CONCLUSION 

Based on the foregoing, the motion to set aside the June 6, 2023 dismissal is GRANTED. The action is reinstated.  The Final Status Conference is set for August 26, 2024 at 10:00 a.m. in Department 27 of Spring Street Courthouse.  Trial is set for September 9, 2024 at 8:30 a.m. in Department 27 of Spring Street Courthouse.   The OSC re Dismissal is set for March 10, 2025.  Plaintiff is ordered to file proof of service of the summons and complaint on Defendants within 30 days of this order.  (Code Civ. Proc., § 583.210.)

Dated:   October 9, 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.