Judge: Mark E. Windham, Case: 20STLC05766, Date: 2022-12-12 Tentative Ruling

Case Number: 20STLC05766    Hearing Date: December 12, 2022    Dept: 26

Paiz v. Martin, et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Blanca Paiz’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON FEBRUARY 8, 2022 IS HEREBY VACATED.

TRIAL IS RE-SET FOR JUNE 12, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On July 10, 2020, Plaintiff Blanca Paiz (“Plaintiff”) filed this action against Defendant Nemesio Martin (“Defendant”). No proof of service of the Summons and Complaint has been filed. On the trial date, Plaintiff made an oral request to dismiss the action with prejudice. (Minute Order, 02/08/22.) The Court entered the dismissal on the same date. (Order – Dismissal, 02/08/22.)

Plaintiff filed the instant Motion to Vacate Dismissal on August 8, 2022. No 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.) Relief from a voluntary dismissal is only available pursuant to the discretionary provision for relief. (See Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 256 [citing State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 609–610].)

The Motion was timely brought less than six months after the dismissal and is supported by an attorney affidavit of fault. Plaintiff’s counsel explains the inadvertent request for dismissal was the result of an office move and training a new hire. (Motion, Levy Decl., ¶¶4-5.) Therefore, Plaintiff is entitled to an order reinstating the action under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff Blanca Paiz’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON FEBRUARY 8, 2022 IS HEREBY VACATED.

TRIAL IS RE-SET FOR JUNE 12, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.