Judge: Mark E. Windham, Case: 19STLC03579, Date: 2023-12-07 Tentative Ruling
Case Number: 19STLC03579 Hearing Date: December 7, 2023 Dept: 26
Jackson
v. Farraj, et al.
MOTION TO
VACATE DISMISSAL
(CCP § 473(b))
TENTATIVE RULING:
Plaintiff Nicole Jackon’s Motion to
Vacate Dismissal is DENIED.
ANALYSIS:
Plaintiff Nicole Jackson (“Plaintiff”) filed the instant
action for breach of contract, breach of the implied covenant of good faith and
fair dealing, and negligent infliction of emotional distress against Defendant
Roger Feraj dba Andy’s Auto Service (“Defendant”) on April 11, 2019. The case
concerns alleged damages to Plaintiff’s vehicle after she took it to Defendant
for brake repairs. (Compl., ¶¶4-16.) When Plaintiff failed to appear for trial on January
23, 2023, the Court dismissed the action without prejudice. (Minute Order, 01/23/23.)
Plaintiff filed the instant Motion to Vacate Dismissal on July
31, 2023. Defendant filed an opposition on November 22, 2023.
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 with respect to entry of default, default
judgment, or involuntary dismissal, 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.
Conclusion
Plaintiff Nicole Jackon’s Motion to
Vacate Dismissal is DENIED.
Moving party to give
notice.