Judge: Mark E. Windham, Case: 21STLC04479, Date: 2023-01-12 Tentative Ruling

Case Number: 21STLC04479    Hearing Date: January 12, 2023    Dept: 26

Soto v. Robinson, et al.
MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Ema Aracely Romero Soto’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON DECEMBER 13, 2022 IS HEREBY VACATED.

TRIAL IS RE-SET FOR JUNE 15, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

Plaintiff Ema Aracely Romero Soto (“Plaintiff”) filed this action for motor vehicle negligence against Defendant Mark Anthony Robinson (“Defendant”), on June 15, 2021. Defendant filed an Answer, in pro per, on August 20, 2021.

Trial had been set for December 13, 2022, but Plaintiff failed to appear when trial was called. (Minute Order, 12/13/22.) As result, the Court dismissed the action without prejudice. (Ibid.) Plaintiff filed the instant Motion to Vacate Dismissal on December 15, 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, Soong Decl., ¶3.) Therefore, Plaintiff is entitled to have the action reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff Ema Aracely Romero Soto’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON DECEMBER 13, 2022 IS HEREBY VACATED.

TRIAL IS RE-SET FOR JUNE 15, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.