Judge: Mark E. Windham, Case: 20STLC08872, Date: 2023-01-04 Tentative Ruling

Case Number: 20STLC08872    Hearing Date: January 4, 2023    Dept: 26

Tashjian v. City of Los Angeles, et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))


TENTATIVE RULING:

Plaintiff Levon Tashjian’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON SEPTEMBER 14, 2022 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE ENTRY OF DEFAULT AND DEFAULT JUGMENT SET FOR FEBRUARY 8, 2023 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On October 20, 2020, Plaintiff Levon Tashjian (“Plaintiff”) filed this action against Defendant City of Los Angeles (“Defendant”). Plaintiff failed to appear when the matter came for trial on April 19, 2022 and the Court dismissed the action without prejudice. (Minute Order, 04/19/22.) The Court granted Plaintiff’s Motion to Vacate Dismissal on July 13, 2022 and set an Order to Show Cause Re Failure to File Proof of Service of Summons and Complaint for September 14, 2022. (Minute Order, 07/13/22.)

Plaintiff filed a Proof of Personal Service on August 29, 2022, but did not appear for the OSC on September 14, 2022. Due to Plaintiff’s non-appearance, the Court dismissed the action again. Plaintiff filed the instant Motion to Vacate Dismissal on October 25, 2022. No opposition 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, 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 mistakenly believed filing the Proof of Personal Service would discharge the OSC and that no appearance was required on September 14, 2022. (Motion, Bazikyan, Decl., ¶¶6-8.) Therefore, Plaintiff is entitled to have the action reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff Levon Tashjian’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON SEPTEMBER 14, 2022 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE ENTRY OF DEFAULT AND DEFAULT JUGMENT IS SET FOR FEBRUARY 8, 2023 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.