Judge: Lisa R. Jaskol, Case: 21STCV34446, Date: 2023-10-10 Tentative Ruling

Case Number: 21STCV34446    Hearing Date: October 10, 2023    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On September 17, 2021, Plaintiff Estrella Chinchilla (“Plaintiff”) filed this action against Food 4 Less of Southern California, Inc., the Kroger Co., and Does 1-50 for general negligence and premises liability. 

On October 22, 2021, Defendant, Alpha Beta Company dba Food 4 Less (incorrectly named and served as Food 4 Less of Southern California, Inc.) (“Alpha Beta”) filed an answer. On January 18, 2022, Alpha Beta filed an amended answer. 

On February 25, 2022, the Court granted Plaintiff’s unopposed request for trial preference. 

On June 27, 2022, the Court dismissed the Kroger Co. without prejudice at Plaintiff’s request. 

On July 11, 2022, Plaintiff filed a notice of unconditional settlement. 

On May 25, 2023, the Court dismissed the complaint without prejudice at Plaintiff’s request. 

On August 8, 2023, Plaintiff filed a motion to vacate dismissal to be heard on October 10, 2023.  No opposition has been filed. 

No trial date is currently set. 

PARTY’S REQUEST 

Plaintiff requests that the Court vacate the dismissal and then dismiss the case with prejudice. 

LEGAL STANDARD 

          Code of Civil Procedure section 473, subdivision (b), provides in part: 

“Notwithstanding any other requirements of this section, 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. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.” 

(Code Civ. Proc., § 473, subd. (b).) 

DISCUSSION 

Plaintiff’s counsel has submitted a declaration stating that counsel inadvertently failed to check the correct box on the request for dismissal form. Counsel intended to dismiss the case with prejudice consistent with the parties’ settlement.  Counsel instead requested dismissal without prejudice.  The Court accordingly dismissed the case without prejudice. 

The Court grants the motion and vacates the May 25, 2023 order dismissing the case without prejudice.  At Plaintiff’s request, the Court dismisses the case with prejudice. 

CONCLUSION 

The Court GRANTS Plaintiff Estrella Chinchilla’s motion to vacate the May 25, 2023 order dismissing the case without prejudice.  The Court vacates the May 25, 2023 order dismissing the case without prejudice. 

The Court GRANTS Plaintiff Estrella Chinchilla’s request to dismiss the case with prejudice consistent with the terms of the parties’ settlement.  The case is dismissed with prejudice. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.