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.