Judge: Mark E. Windham, Case: 20STLC06521, Date: 2023-12-05 Tentative Ruling

Case Number: 20STLC06521    Hearing Date: December 5, 2023    Dept: 26

Interinsurance Exchange v. Cox-McCorvey, et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Interinsurance Exchange of the Automobile Club’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JULY 31, 2023 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE: DISMISSAL IS SET FOR FEBRUARY 6, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On August 4, 2020, Plaintiff Interinsurance Exchange of the Automobile Club (“Plaintiff”) filed the instant action for automobile subrogation against Defendant Lamar Cox-McCorvey (“Defendant”). Plaintiff filed a notice of settlement on October 21, 2020. (Minute Order, 10/21/20.) The Court set an Order to Show Cause Re: Dismissal for July 21, 2021, which was then continued to July 31, 2023. (OSC Re Dismissal, 10/21/20 and 07/15/21.) When Plaintiff failed to appear at the Order to Show Cause on July 31, 2023, the Court dismissed the action without prejudice. (Minute Order, 07/31/23.)

Plaintiff filed the instant Motion to Vacate Dismissal on October 5, 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 mis-calendared the Order to Show Cause. (Motion, Tapper Decl., ¶¶2-3.) Therefore, the case must be reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff Interinsurance Exchange of the Automobile Club’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JULY 31, 2023 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE: DISMISSAL IS SET FOR FEBRUARY 6, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.