Judge Mark E. Windham, Case 20STLC05382 2022-08-01 Tentative Ruling

Judge: Mark E. Windham, Case: 20STLC05382, Date: 2022-08-01 Tentative Ruling

Case Number: 20STLC05382 Hearing Date: August 1, 2022 Dept: 26

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Robert Santos’ Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON MARCH 28, 2022 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE FAILURE TO FILE PROOF OF SERVICE IS SET FOR OCTOBER 17, 2022 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On June 26, 2020, Plaintiff Robert Santos (“Plaintiff”) filed this action against Defendant Eduardo Hernandez (“Defendant”). Plaintiff failed to appear when the matter came for trial on March 28, 2022 and the Court dismissed the action without prejudice. (Minute Order, 03/28/22.)

Plaintiff filed the instant Motion to Vacate Dismissal on June 21, 2022. No proof of service of the Summons and Complaint has been filed to date. Nor has any opposition to the Motion 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, 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 declares that they failed to appear on March 28, 2022 due to significant health issues. (Motion, Mesaros Decl., Decl., ¶3.) Therefore, Plaintiff is entitled to have the action reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff Robert Santos’ Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON MARCH 28, 2022 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE FAILURE TO FILE PROOF OF SERVICE IS SET FOR OCTOBER 17, 2022 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.