Judge: Mark E. Windham, Case: 20STLC07934, Date: 2022-12-15 Tentative Ruling
Case Number: 20STLC07934 Hearing Date: December 15, 2022 Dept: 26
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 JUNE 14, 2022 IS HEREBY VACATED.
ORDER TO SHOW CAUSE RE: ENTRY OF DEFAULT AND DEFAULT
JUDGMENT OR DISMISSAL IS RE-SET FOR JANAURY 12, 2023 AT 8:30 AM IN DEPARTMENT 26
IN THE SPRING STREET COURTHOUSE.
ANALYSIS:
On September 21,
2020, Plaintiff Interinsurance Exchange of the Automobile Club (“Plaintiff”) filed this action against Defendant
Charles Lance Simco (“Defendant”).
Defendant’s default was entered on December 14, 2020. When this action came for
trial, Plaintiff represented that it was in the process of obtaining default
judgment and the Court set an Order to Show Cause Re: Entry of Default
and Default Judgment or Dismissal for June 14, 2022. (Minute Order, 03/21/22.) When Plaintiff failed to appear at
the Order to Show Cause, the Court dismissed the action without prejudice. (06/14/22.)
Plaintiff filed
the instant Motion to Vacate Dismissal on September 20, 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.) 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 for the Order to Show Cause due to a
calendaring error. (Motion, McClain Decl., ¶¶3-4.) Therefore, Plaintiff is
entitled to have the action 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 JUNE 14, 2022 IS HEREBY VACATED.
ORDER TO SHOW CAUSE RE: ENTRY OF DEFAULT AND DEFAULT
JUDGMENT OR DISMISSAL IS RE-SET FOR JANAURY 12, 2023 AT 8:30 AM IN DEPARTMENT 26
IN THE SPRING STREET COURTHOUSE.
Moving party to give
notice.