Judge: Mark E. Windham, Case: 21STLC02576, Date: 2023-01-09 Tentative Ruling

Case Number: 21STLC02576    Hearing Date: January 9, 2023    Dept: 26

TENTATIVE RULING:

Plaintiff Judgment Recovery Assistance, Inc.’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON SEPTEMBER 29, 2022 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE ENTRY OF DEFAULT JUDGMENT IS SET FOR APRIL 5, 2023, AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

Plaintiff Judgment Recovery Assistance, LLC (“Plaintiff”) filed this action for recovery of back rent against Defendant Juan Ramirez (“Defendant”), on April 1, 2019. Default was entered against Defendant on February 9, 2022. Following rejection of Plaintiff’s request for default judgment, Plaintiff filed a First Amended Complaint on June 28, 2022. Proof of Service of the Summons was filed on August 22, 2022, indicting the Defendant was served with the First Amended Complaint on August 5, 2022. (Proof of Service, filed 08/22/22, ¶¶3-5.)

Trial had been set for September 29, 2022, but Plaintiff failed to appear when trial was called. (Minute Order, 09/29/22.) As result, the Court dismissed the action without prejudice. (Ibid.) Plaintiff filed the instant Motion to Vacate Dismissal on November 23, 2022. No opposition to the Motion been filed to date.

Judgment Recovery Assistance, LLC v. Ramirez, et al.



MOTION TO VACATE DISMISSAL

(CCP § 473(b))

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 on the trial date due to a calendaring error. (Motion, Compton Decl., ¶10.) Therefore, Plaintiff is entitled to have the action reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff Judgment Recovery Assistance, Inc.’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON SEPTEMBER 29, 2022 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE ENTRY OF DEFAULT JUDGMENT IS SET FOR APRIL 5, 2023, AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.