Judge: Mark E. Windham, Case: 19STLC08825, Date: 2023-10-24 Tentative Ruling

Case Number: 19STLC08825    Hearing Date: October 24, 2023    Dept: 26

Garcia v. Becerra, et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Juan Jose Garcia’s Motion to Vacate Dismissal is DENIED.

ANALYSIS:

On September 25, 2019, Plaintiff Juan Jose Garcia (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendants Gizzelle Andrea Becerra and Beartha Deanda Becerra (“Defendants”). Defendants filed an answer to the Complaint on February 6, 2020. The trial date was continued multiple times until March 27, 2023. When Plaintiff failed to appear at trial, the Court granted Defendants’ oral motion to dismiss the action without prejudice. (Minute Order, 03/27/23.)

Plaintiff filed the instant Motion to Vacate Dismissal on September 19, 2023. Defendants filed an opposition on October 10, 2023.

Discussion

The motion is brought pursuant to the discretionary provision for relief under Code of Civil Procedure, section 473, subdivision (b). (Motion, p. 3:13-19.) Under this statute, an application for relief must be filed within a reasonable amount of time not to exceed six months, and 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.)

Plaintiff repeatedly contends that the Motion is timely and then incorrectly argues that the statutory deadline is six months. (Motion, p. 3:21-4:19.) This ignores the following language: “Application for this relief … shall be made within a reasonable time, in no case exceeding six months…” (Code Civ. Proc., § 473, subd. (b) [emphasis added].) “[W]hat is a reasonable time in any case depends upon the circumstances of that particular case.” While in “the determination of that question, a large discretion is necessarily confided to [the trial] court” ... there must be some showing—some evidence—as the basis for the exercise of such discretion.’ ” (Caldwell v. Methodist Hospital (1994) 24 Cal.App.4th 1521, 1524 [citing Carrasco v. Craft (1985) 164 Cal.App.3d 796, 805].)

Plaintiff offers no evidence for the Court to exercise its discretion to find that the Motion was filed within a reasonable time and the evidence in the record points to the contrary. The dismissal was entered on March 27, 2023 and notice of the same was provided to Plaintiff’s counsel two days later. (Notice of Ruling, filed 03/29/23.) However, the instant Motion was not filed until almost six months later, on September 19, 2023. Plaintiff’s counsel contends that she missed the trial date because of an illness involving flu-like symptoms. (Motion, Casado Decl., ¶¶2-4.) This does not indicate that a delay of almost six months in moving for relief was reasonable. Accordingly, the Court does not reach the question of whether Plaintiff’s failure to appear was the result of mistake, inadvertence, surprise, or excusable neglect, as Defendants argue in opposition.

Conclusion

Plaintiff Juan Jose Garcia’s Motion to Vacate Dismissal is DENIED.

Defendants to give notice.