Judge: Mark E. Windham, Case: 18STLC13060, Date: 2022-10-05 Tentative Ruling

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Case Number: 18STLC13060    Hearing Date: October 5, 2022    Dept: 26

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

 

TENTATIVE RULING:

 

Plaintiff Onimae Tuimaualuga’s Motion to Vacate Dismissal is DENIED.

 

 

SERVICE:

 

[X] Proof of Service Timely Filed (CRC 317(b)) N/A

[X] Correct Address (CCP 1013, 1013a) N/A

[X] 16/21 Day Lapse (CCP 12c and 1005(b)) N/A

 

SUMMARY OF COMPLAINT: Action for motor vehicle negligence.

 

REQUEST FOR RELIEF: Vacate dismissal of action due to Plaintiff’s attorney’s fault.

 

OPPOSITION: None filed as of October 3, 2022.

 

REPLY: None filed as of October 3, 2022.

 

 

ANALYSIS:

 

On October 23, 2018, Plaintiff Onimae Tuimaualuga (“Plaintiff”) filed this action against Defendant Alejandro Reyes (“Defendant”). Following Plaintiff’s failure to appear for the Order to Show Cause on October 26, 2021, the Court dismissed the action without prejudice. (Minute Order, 10/26/21.)  

 

Plaintiff filed the instant Motion to Vacate Dismissal on July 28, 2022. No opposition has been filed to date.

 

Discussion

 

The Motion is brought pursuant to Code of Civil Procedure, section 473, subdivision (b). Under this statute, 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 based on attorney fault, a timely request for relief must be granted. (Code Civ. Proc., § 473, subd. (b).) When brought pursuant to the provision for discretionary relief based on party fault, the request must have been filed within a reasonable amount of time and any neglect by the party must be “excusable.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1419-1420.)

 

The Motion was not timely brought less than six months after the order dismissing the action. Instead, it was filed more than nine months after the dismissal, of which Plaintiff was given notice by the Court. (Certificate of Mailing, 10/26/21.) The six-month deadline is jurisdictional and not subject to tolling. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) The Court has no authority to grant Plaintiff relief under Code of Civil Procedure section 473, subdivision (b) beyond the six-month filing window.

 

Conclusion

 

Therefore, Plaintiff Onimae Tuimaualuga’s Motion to Vacate Dismissal is DENIED.

 

 

Court clerk to give notice.