Judge: Mark E. Windham, Case: 21STLC01095, Date: 2022-12-12 Tentative Ruling

Case Number: 21STLC01095    Hearing Date: December 12, 2022    Dept: 26

United Financial Casualty Co. v. Bogan, et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff United Financial Casualty Company’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON OCTOBER 24, 2022 IS HEREBY VACATED.

TRIAL DATE IS RE-SET FOR AUGUST 31, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On February 28, 2021, Plaintiff United Financial Casualty Company (“Plaintiff”) filed this action against Defendants Ronald Bogan, Ronald Bogan, Sr., Darrel Dante Curtis Tucker, and Athena Monae Katie Jones (“Defendants”). On October 24, 2022, Plaintiff failed to appear for trial and the Court dismissed the entire action without prejudice.

Plaintiff filed the instant Motion to Vacate Dismissal on November 10, 2022. There is no opposition to the Motion.

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].)

When a Motion is brought pursuant to the provision for discretionary relief based on party fault, the request must have been filed within a reasonable amount of time and the fault must be “excusable.” (Id. at 258.) “In determining whether the attorney’s mistake or inadvertence was excusable, “the court inquires whether ‘a reasonably prudent person under the same or similar circumstances’ might have made the same error.’ ” (Ibid. [citing Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276].)

The Motion was timely brought less than six months after dismissal of the action and is supported by a declaration of fault from Plaintiff’s counsel. Plaintiff’s counsel mistakenly failed to appear for trial. (Motion, Nivinskus Decl., ¶¶3-4.) Therefore, Plaintiff is entitled to have the action reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff United Financial Casualty Company’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON OCTOBER 24, 2022 IS HEREBY VACATED.

TRIAL DATE IS RE-SET FOR AUGUST 31, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.