Judge: Mark E. Windham, Case: 20STLC10227, Date: 2022-08-30 Tentative Ruling

Case Number: 20STLC10227    Hearing Date: August 30, 2022    Dept: 26

TENTATIVE RULING:

Plaintiff Hayarpi Sukiasyan’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JUNE 7, 2022 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE FAILURE TO FILE PROOF OF SERVICE IS SET FOR NOVEMBER 1, 2022 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

SERVICE:

[X] Proof of Service Timely Filed (CRC 317(b)) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 16/21 Day Lapse (CCP 12c and 1005(b)) OK

SUMMARY OF COMPLAINT: Action for motor vehicle negligence.

REQUEST FOR RELIEF: Vacate dismissal of action due to Plaintiff’s failure to appear at trial.  

OPPOSITION: None filed as of August 26, 2022.

REPLY: None filed as of August 26, 2022.

ANALYSIS:

On December 8, 2020, Plaintiff Hayarpi Sukiasyan (“Plaintiff”) filed this action against Defendants Celia Cesneros De Duran and Ricardo T. Duran (“Defendants”). When Plaintiff failed to appear when the matter came for trial on June 7, 2022, the Court dismissed the action without prejudice. (Minute Order, 06/07/22.)

Plaintiff filed the instant Motion to Vacate Dismissal on June 28, 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. Plaintiff declares they struggled to find new counsel to take the case from April 2021 until June 2022 and did not realize their prior counsel had not served Defendants. (Motion, Sukiasyan Decl., Decl., ¶¶3-6.) This demonstrates that dismissal of the action was due to Plaintiff’s surprise in their prior attorney’s handling of the case. Therefore, Plaintiff is entitled to have the action reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff Hayarpi Sukiasyan’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JUNE 7, 2022 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE FAILURE TO FILE PROOF OF SERVICE IS SET FOR NOVEMBER 1, 2022 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.