Judge: Linda S. Marks, Case: 2022-01241774, Date: 2022-10-17 Tentative Ruling

Motion to Set Aside/Vacate Dismissal filed by Interinsurance Exchange of the Automobile Club on 7/6/22

“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.” (Civ. Proc. Code, § 473, subd. (b), emphasis added.) However, “the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. (Ibid.)

Plaintiff seeks a mandatory order to set aside the dismissal entered based on an attorney affidavit of fault. Plaintiff’s counsel, Salvador Corona, who was the attorney who filed the request for dismissal, filed the attorney affidavit of fault. Corona only states, in relevant part, that: “(4) On or about May 17, 2022, the court received from plaintiff a Request for Dismissal that mistakenly requested that the instant case be dismissed (A true and correct copy of the Request is attached hereto as Exhibit “A” and incorporated herein by reference.) [¶] (5) Plaintiff intended to dismiss Interinsurance Exchange v. Asadi, Case No. 30-2021-01220175-CU-PA-WJC.” [ROA 19, Corona decl., ¶ 4-5]

Here, Plaintiff only seeks mandatory relief under Code of Civil Procedure section 473(b). However, the declaration submitted in support does not show that the entry of dismissal was due to attorney Salvador Corona’s mistake, inadvertence, surprise, or neglect. Instead, Corona’s declaration states that Plaintiff mistakenly requested that the instant case be dismissed and that it was Plaintiff that intended to dismiss another case. The mandatory relief provision in Code of Civil Procedure section 473(b) requires an attorney affidavit of fault and Corona’s declaration does not accept fault for the dismissal.

Tentative Ruling: Plaintiff Interinsurance Exchange of the Automobile Club motion to set aside dismissal is DENIED WITHOUT PREJUDICE.