Judge: Latrice A. G. Byrdsong, Case: 22STLC01158, Date: 2023-12-18 Tentative Ruling

Case Number: 22STLC01158    Hearing Date: December 18, 2023    Dept: 25

Tentative  Ruling:                   The motion to set aside/vacate dismissal entered on 08/18/2023 is GRANTED.

Trial in this action is reset for May 14, 2024 at 8:30 a.m. in Department 25 of the Spring Street Courthouse.

Discovery and all other trial related deadlines are to comport with the new trial date.

Parties must comply with the trial requirements as set forth in the court's Third Amended Standing Order for Limited Civil Cases (effective February 24, 2020).

All trial documents are to be electronically filed at least ten (10) days prior to the trial date.

Parties should be prepared to submit a JOINT Trial Readiness Binder / Exhibit Binder, and to personally appear on the date of trial.

BACKGROUND

On February 18, 2022, Plaintiff United Financial Casualty Company (“Plaintiff”) filed this action for subrogation property damages against Defendants Audel Ernesto Abarca (“Audel”), Douglas Abarca (“Douglas”), and Does 1 through 20 (collectively “Defendants”) for property damages arising out of a vehicle collision which occurred on October 2, 2020, involving the plaintiff’s insured Loverpreet Singh and the defendants, Audel and Douglas.

Service of process upon defendant Audel Ernesto Abarca was effected on February 25, 2023 and service for defendant Douglas Abarca was effected on November 30, 2022. A Court Trial was then scheduled on August 18, 2023.

On May 12, 2023, all parties related to this action signed a stipulation to consolidate the cases. (Dec. Nivinskus ¶3-5.) The Stipulation to Consolidate was filed on May 12, 2023. (Id.) Notice was given that the new court trial date was scheduled for May 14, 2024. (Id.)

On August 18, 2023, the Court dismissed the case without prejudice after there were no appearances for the jury trial. (Minute Order Dated 8/18/23.)

On November 16, 2023, Plaintiff filed a motion to set aside the dismissal. (Dec. Nivinskus ¶8.)

As of December 13, 2023, no opposition has been filed.

ANALYSIS

I.                   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.) 

II.                Discussion

The Moving Party argues that the Court should set aside/vacate the dismissal on the grounds of mistake, inadvertence, or excusable neglect. (Notice of Motion p.2.)

            Here, Plaintiff’s counsel provides Declarations in support of this motion. (Dec. Nivinskus p.6-7; Dec. Diaz p.8.) Plaintiff’s counsel submitted this application about three months since the dismissal which is considered timely. (Dec. Nivinskus at ¶7-8.) Further, Plaintiff’s counsel states that his calendaring error resulted in his failure to appear at the August 18, 2023 trial. (Id. at ¶2-7.) Specifically, counsel’s legal assistant deleted the August 18, 2023 trial date after receiving a notice that the new court trial was May 14, 2024. (Dec. Diaz ¶5.)

            Therefore, the Court finds that Plaintiff’s motion is timely and accompanied by an attorney’s declaration of fault demonstrating that his failure to appear was the result of a mistake. 

III.       Conclusion

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED.   The Dismissal entered on August 18, 2023, is hereby SET ASIDE AND VACATED. 

Trial in this action is reset for May 14, 2024 at 8:30 a.m. in Department 25 of the Spring

Street Courthouse.

Discovery and all other trial related deadlines are to comport with the new trial date.

Parties must comply with the trial requirements as set forth in the court's Third Amended Standing Order for Limited Civil Cases (effective February 24, 2020).

All trial documents are to be electronically filed at least ten (10) days prior to the trial date.

Parties should be prepared to submit a JOINT Trial Readiness Binder / Exhibit Binder, and to personally appear on the date of trial.

Moving party to give notice.