Judge: Latrice A. G. Byrdsong, Case: 22STLC02880, Date: 2024-03-21 Tentative Ruling
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Case Number: 22STLC02880 Hearing Date: March 21, 2024 Dept: 25
Hearing Date: Thursday, March 21, 2024
Case Name: INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB, an insurance exchange v. ALVARO SAMAI ALVAREZ SOTO, an individual; and Does 1 through 10.
Case No.: 22STLC02880
Motion: Motion to Vacate the 10/23/2023 Dismissal and Restore Action to the Civil Case Active List
Moving Party: Plaintiff Interinsurance Exchange of the Automobile Club
Responding Party: None
Notice: OK
Tentative Ruling: Plaintiff Interinsurance Exchange of the Automobile Club’s Motion to Vacate the Dismissal Entered on 10/23/2023 and to Restore Action to the Civil Case Active List is GRANTED.
The Dismissal entered on 10/23/2023 is set aside and vacated.
An Order to Show Cause Re: Dismissal / Settlement (CCP 664.6) set for NOVEMBER 5, 2024 at 9:30 a.m. in Department 25 of the Spring Street Courthouse.
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 March 08, 2024 [ ] Late [X] None
REPLY: None filed as of March 14, 2024 [ ] Late [X] None
BACKGROUND
On April 25, 2022, Plaintiff Interinsurance Exchange of the Automobile Club (“Plaintiff”) filed an automobile subrogation and breach of promissory note action against Defendant Alvaro Samai Alvarez Soto (“Defendant”).
On October 23, 2023, the Court, on its own motion, ordered the dismissal of the instant action pursuant to CCP § 581(b)(3) noting the parties failure to appear at the scheduled trial date.
On February 13, 2024, Plaintiff filed the instant Motion to Vacate Dismissal.
No opposition has been filed.
MOVING PARTY POSITION
Plaintiff prays for the Court to issue an order vacating the dismissal entered on October 23, 2023, under CCP § 473. Plaintiff argues that due to its attorney’s mistake, inadvertence, surprise, and excusable neglect in mis-calendaring the non-jury trial, Plaintiff missed the hearing thus resulting in the Court’s order dismissing the matter. Counsel states that had he appeared he would have informed the Court that a settlement between the parties had been reached.
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
As a preliminary matter the Court finds that the motion is timely filed. 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. (Code Civ. Proc., §473(b).) Here, the Court ordered dismissal of the matter on October 23, 2023. (10/23/2023 Minute Order.) Plaintiff filed the instant motion on February 13, 2024, well within the six-month deadline. Thus, the motion is timely filed.
Plaintiff provides the Court with its counsel’s declaration, in which he states that due to a calendaring error, Plaintiff did not appear at the October 23 trial. (Brian P. Tapper Decl. ¶ 3.) Counsel further avers that if he had appeared, he would have notified the Court of the settlement reached by the parties so that Plaintiff can dismiss the case with the Court retaining jurisdiction under CCP § 664.6. (Id. ¶¶ 3-4.) Plaintiff therefore prays for the Court to vacate the dismissal so that Plaintiff can properly seek a dismissal pursuant to CCP § 664.6. (Id. ¶ 4.) Thus, based on Counsel’s declaration the Court finds that the error was caused by Plaintiff’s counsel’s mistake, inadvertence, or excusable neglect and therefore entitles Plaintiff to mandatory relief under Section 473(b).
Accordingly, the Court GRANTS Plaintiff Interinsurance Exchange of Automobile Club’s Motion to Vacate the Dismissal. Dismissal entered on October 23, 2023, is hereby vacated.
III. Conclusion
Plaintiff Interinsurance Exchange of the Automobile Club’s Motion Vacate the Dismissal Entered on 10/23/2023 and to Restore Action to the Civil Case Active List is GRANTED.
The Dismissal entered on 10/23/2023 is set aside and vacated.
The Court sets an OSC Re Dismissal/Settlement (CCP 664.6) for November 5, 2024 at 9:30am in Department 25 of the Spring Street Courthouse.
Moving Party is ordered to give notice.