Judge: Mark E. Windham, Case: 19STLC09589, Date: 2023-08-03 Tentative Ruling
Case Number: 19STLC09589 Hearing Date: August 3, 2023 Dept: 26
Zolorzano v. Daron, et al.
MOTION TO
VACATE DISMISSAL
(CCP § 473(b))
TENTATIVE RULING:
Plaintiff Nelson Zolorzano’s Motion
to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON NOVEMBER 28, 2022 IS
HEREBY VACATED.
ORDER TO SHOW CAUSE FOR FAILURE TO
FILE PROOF OF SERVICE IS SET FOR SEPTEMBER 6, 2023 AT 8:30 AM IN DEPARTMENT 26
IN THE SPRING STREET COURTHOUSE.
ANALYSIS:
On October 16, 2019, Plaintiff Nelson
Zolorzano (“Plaintiff”) filed the instant action for motor vehicle negligence
and personal injury against Defendant Bryan Daron (“Defendant”). Plaintiff
filed a first amended complaint on July 13, 2021. The Court set an order to
show cause regarding failure to file proof of service, which was continued
multiple times until November 28, 2022. Upon Plaintiff’s failure to appear on
that date, the Court dismissed the action without prejudice. (Minute Order,
11/28/22.)
Plaintiff filed the instant Motion to Vacate Dismissal on May
4, 2023. No opposition to the Motion 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 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.
The motion was timely filed within six months of dismissal
of the action and is supported by an affidavit of attorney fault. Plaintiff’s
counsel declares that they failed to calendar the November 28, 2022 order to
show cause. (Motion, Drake Decl., ¶10.) Therefore, the case must be reinstated
under Code of Civil Procedure section 473, subdivision (b).
Conclusion
Plaintiff Nelson Zolorzano’s Motion
to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON NOVEMBER 28, 2022 IS
HEREBY VACATED.
ORDER TO SHOW CAUSE FOR FAILURE TO
FILE PROOF OF SERVICE IS SET FOR SEPTEMBER 6, 2023 AT 8:30 AM IN DEPARTMENT 26
IN THE SPRING STREET COURTHOUSE.
Moving party to give
notice.