Judge: Mark E. Windham, Case: 21STLC02623, Date: 2023-04-25 Tentative Ruling

Case Number: 21STLC02623    Hearing Date: April 25, 2023    Dept: 26

Martinez v. Blanco, et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Martin Martinez’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON SEPTEMBER 29, 2023 IS HEREBY VACATED.

ORDER TO SHOW CAUSE REGARDING FAILURE TO FILE PROOF OF SERVICE OF SUMMONS AND COMPLAINT IS SET FOR JULY 25, 2023 AT 9:30 AM IN DEPARTMENT 26 OF THE SPRING STREET COURTHOUSE.

ANALYSIS:

Plaintiff Martin Martinez (“Plaintiff”) filed this action for motor vehicle negligence against Defendant Carmen Blanco and Joshua Fugslang (“Defendants”), on April 1, 2021. Trial was set for January 17, 2023 and when Plaintiff failed to appear, the Court dismissed the action without prejudice. (Minute Order, 01/17/23.)

Plaintiff filed the instant Motion to Vacate Dismissal on March 21, 2023. 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 on the trial date due to a calendaring error. (Motion, Haralambopoulos Decl., ¶3.) Therefore, Plaintiff is entitled to have the action reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff Martin Martinez’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON SEPTEMBER 29, 2023 IS HEREBY VACATED.

ORDER TO SHOW CAUSE REGARDING FAILURE TO FILE PROOF OF SERVICE OF SUMMONS AND COMPLAINT IS SET FOR JULY 25, 2023 AT 9:30 AM IN DEPARTMENT 26 OF THE SPRING STREET COURTHOUSE.

Moving party to give notice.