Judge Mark E. Windham, Case 19STLC09679 2023-01-24 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 26 at the Spring Street Courthouse until the morning of the motion hearing.

The e-mail address is SSCdept26@lacourt.org

The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.

If there are no appearances by either side and no submission on the Court's tentative ruling, the matter will be placed OFF CALENDAR.

Due to overcrowding concerns of COVID-19, all parties shall make every effort to schedule a remote appearance via LACourtConnect (https://my.lacourt.org/laccwelcome) for their next hearing. The parties shall register with LACourtConnect at least 2 hours prior to their scheduled hearing time.

Plaintiff Jesus Lua’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON SEPTEMBER 12, 2022 IS HEREBY VACATED.

ORDER TO SHOW CAUSE REGARDING FAILURE TO ENTER JUDGMENT / DISMISSAL IS SET FOR MARCH 21, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Plaintiff Jesus Lua (“Plaintiff”) filed this action for motor vehicle negligence against Defendant Silviano Rosas (“Defendant”), on October 18, 2019. The trial was initially set for April 16, 2021, but taken off calendar in lieu of an order to show cause regarding failure to file proof of service of the Summons and Complaint. (Minute Order, 04/16/21.) Plaintiff filed proof of personal service on October 20, 2021 and the Court then set an order to show cause regarding entry of default and/or trial setting conference. The order to show cause was continued multiple times to September 12, 2022, with warning to Plaintiff that failure to appear may result in the action being dismissed. (Minute Orders, 02/23/22, 04/18/22, 06/13/22.) When Plaintiff failed to appear on September 12, 2022, the Court dismissed the action without prejudice. (Minute Order, 09/12/22.)

Plaintiff filed the instant Motion to Vacate Dismissal on December 30, 2022. No opposition to the Motion been filed to date.

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 brought less than six months after dismissal and is supported by a declaration of fault from Plaintiff’s counsel. Plaintiff’s counsel failed to appear on at the Order to Show Cause due to a calendaring error. (Motion, Garcia Decl., ¶¶3-4.) Therefore, Plaintiff is entitled to have the action reinstated under Code of Civil Procedure section 473, subdivision (b).

Plaintiff Jesus Lua’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON SEPTEMBER 12, 2022 IS HEREBY VACATED.

ORDER TO SHOW CAUSE REGARDING FAILURE TO ENTER JUDGMENT / DISMISSAL IS SET FOR MARCH 21, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.