Judge: Mark E. Windham, Case: 21STLC04104, Date: 2023-01-04 Tentative Ruling

Case Number: 21STLC04104    Hearing Date: January 4, 2023    Dept: 26

White Zuckerman etc. v. Keel, et al.


MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff White Zuckerman Warsasky Luna & Hunt, LLP’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON NOVEMBER 23, 2022 IS HEREBY VACATED.

TRIAL IS RE-SET FOR APRIL 5, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

Plaintiff White Zuckerman Warsasky Luna & Hunt, LLP (“Plaintiff”) filed this action for breach of contract and common counts against its former client, Defendant Marie Keel (“Defendant”), on May 26, 2021. Defendant filed a Cross-Complaint and Answer on April 19, 2022. On May 24, 2022, the Court sustained Plaintiff’s Demurrer to the Cross-Complaint without leave to amend. (Minute Order, 05/24/22.) Trial had been set for November 23, 2022, but Plaintiff failed to appear when trial was called. (Minute Order, 11/23/22.) As result, the Court dismissed the action without prejudice. (Ibid.)

Plaintiff filed the instant Motion to Vacate Dismissal on December 6, 2022. 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, Goodman Decl., p. 6:1-10.) Therefore, Plaintiff is entitled to have the action reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff White Zuckerman Warsasky Luna & Hunt, LLP’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON NOVEMBER 23, 2022 IS HEREBY VACATED.

TRIAL IS RE-SET FOR APRIL 5, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.