Judge: Mark E. Windham, Case: 20STLC00345, Date: 2023-09-06 Tentative Ruling

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Case Number: 20STLC00345    Hearing Date: September 6, 2023    Dept: 26

 

Maldonado v. Romano, et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))


TENTATIVE RULING:

 

Plaintiff Albert Maldonado’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JANUARY 18, 2023 IS HEREBY VACATED.

 

ORDER TO SHOW CAUSE FOR RE: ENTRY OF DEFAULT OR DISMISSAL AND WHY THE COURT SHOULD NOT IMPOSE SANCTIONS FOR FAILURE TO COMPLY WITH CALIFORNIA RULES OF COURT, RULE 3.110(G) IS SET FOR NOVEMBER 8, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

 

 

ANALYSIS:

 

On January 13, 2020, Plaintiff Albert Maldonado (“Plaintiff”) filed the instant action for breach of contract and common counts against Defendant Rodney Romano, individually, and Rodney Romano dba Romano’s Hot Rods (“Defendant”). Defendant did not file a responsive pleading and the Court set an order to show cause regarding entry of default or dismissal. (Minute Order, 07/12/21.) The order to show cause was continued multiple times from March 16, 2022 to January 18, 2023. When Plaintiff failed to appear on January 18, 2023, the Court dismissed the action without prejudice. (Minute Order, 01/18/23.)

 

Plaintiff filed the instant Motion to Vacate Dismissal on July 17, 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 January 18, 2023 order to show cause due to a calendaring error. (Motion, Inumberable Decl., ¶¶3-8.) Therefore, the case must be reinstated under Code of Civil Procedure section 473, subdivision (b).

 

Conclusion

 

Plaintiff Albert Maldonado’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JANUARY 18, 2023 IS HEREBY VACATED.

 

ORDER TO SHOW CAUSE FOR RE: ENTRY OF DEFAULT OR DISMISSAL AND WHY THE COURT SHOULD NOT IMPOSE SANCTIONS FOR FAILURE TO COMPLY WITH CALIFORNIA RULES OF COURT, RULE 3.110(G) IS SET FOR NOVEMBER 8, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

 

 

Moving party to give notice.