Judge: Latrice A. G. Byrdsong, Case: 22STLC02879, Date: 2024-01-17 Tentative Ruling

Case Number: 22STLC02879    Hearing Date: January 17, 2024    Dept: 25

Hearing Date:                               Wednesday, January 17, 2024

Case Name:                                     ASPIRE GENERAL INSURANCE COMPANY v. TASHAY SMITH, an individual; SEAN SMITH, JR, an individual; and DOES 1 through 10

Case No.:                                           22STLC02879

Motion:                                               Motion to Vacate Dismissal

Moving Party:                                    Plaintiff, Aspire General Insurance Company

Responding Party:                          None

Notice:                                                OK

Recommended Ruling:           Plaintiff Aspire General Insurance Company’s Motion to Vacate Dismissal is GRANTED.

Defendants’ Answer is ordered to be filed within 10-days from this Court’s Order.

Trial in this action is reset for July 23, 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.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                       OK

[X] Correct Address (CCP §§ 1013, 1013a)                                                         OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                      OK 

OPPOSITION: None filed as of January 03, 2024                           [ ] Late                 [X] None

REPLY:                                None filed as of January 09, 2024                           [ ] Late                 [X] None

BACKGROUND

On April 25, 2022, Plaintiff Aspire General Insurance Company (“Plaintiff”) commenced a subrogation complaint against Defendants Tashay Smith (“Tashay”) and Sean Smith Jr. (“Sean”) (collectively “Defendants”) seeking damages in the amount of $7,387.59.

                On June 28, 2022, Plaintiff requested that default be entered against Defendants. The Clerk entered default against Defendants on June 29, 2022.

                On August 28, 2023, Plaintiff filed notice of a related case, 22STLC04943, involving the same parties and based on the same or similar claims.

On August 31, 2023, the Court reviewed the notice and found the cases related within the meaning of CRC rule 3.300(a) and deemed this case as the lead case. The Court vacated the default entered against Defendants on September 28, 2023.

                On October 23, 2023, the Court dismissed this matter under Code of Civil Procedure § 581(b)(3) due to the nonappearance of either party at the scheduled non-jury trial date.

                On November 30, 2023, Plaintiff filed the instant Motion to Vacate Dismissal. No opposition has been filed.

MOVING PARTY POSITION

Plaintiff requests the Court to set aside the dismissal under Section 473(b). Plaintiff argues that due to its attorney’s mistake, inadvertence, or excusable neglect, Plaintiff failed to appear for the October 23, 2023, non-jury trial date, thus entitling Plaintiff to mandatory relief under Section 473(b).

OPPOSITION

                No opposition has been filed.

REPLY

                No reply has been filed.

ANALYSIS

I.             Legal Standard

Under Code of Civil Procedure, section 473, subdivision (b), “the court may, upon any terms as may be just, 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.” (Code Civ. Proc., §473(b)). Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) An application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise, or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) When relief from default and a default judgment is based on an attorney affidavit of fault, the six-month period starts to run from the date of the entry of the default judgment. (Code Civ. Proc., § 473, sub. (b); Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 295.)

II.            Discussion

Plaintiff moves to set aside default judgement under Section 473(b). Plaintiff argues that due to its attorney’s mistake, inadvertence, or excusable neglect, Plaintiff failed to appear for the October 23, 2023, non-jury trial date and thus prays for mandatory relief under Section 473(b).

Here, the Motion is timely. CCP section 473(b) provides that an application for relief must be made no more than six months after entry of the order from which it was sought. Here, the Court dismissed the matter pursuant to CCP § 581(b)(3) on October 23, 2023. (10/23/2023 Minute Order.) Plaintiff filed its motion on November 30, 2023, well within the six-month deadline. Therefore, the motion is considered timely.

Here, Plaintiff provides the Court with the declaration of its Counsel, Brian Tapper. (Brian Tapper Decl.) Plaintiff’s counsel avers that due to his inadvertence and mistake, Plaintiff did not appear at the October 23, 2023, non-jury trial. (Id. ¶ 2.) Counsel swears that he was going to advise the Court of a related case, which Plaintiff believes needed to be consolidated with this case. (Id.) Counsel states that he inadvertently forgot to properly calendar the October 23, 2023, court hearing. (Id., Ex. A.) As a result of Counsel’s nonappearance, Plaintiff did not appear at the scheduled October 23, 2023, hearing, thus resulting in the Court dismissing the case. (Id.) Therefore based on the Plaintiff’s counsel’s declaration, the Court finds that the Plaintiff’s error was due to Counsel’s mistake, inadvertence, or excusable neglect.

Since the Court finds that the error was caused by Plaintiff’s counsel’s mistake, inadvertence, or excusable neglect, Plaintiff is therefore entitled to mandatory relief under Section 473(b).

                Therefore, the motion complies with section 473(b) and thus Plaintiff is entitled to mandatory relief.

III.           Conclusion

                Plaintiff’s Motion to Vacate the 10/23/2023 Dismissal is GRANTED.

Defendants’ Answer is ordered to be filed within 10-days from this Court’s Order. 

Trial in this action is reset for July 23, 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 is ordered to give notice.