Judge: Mark E. Windham, Case: 21STLC04664, Date: 2023-10-17 Tentative Ruling

Case Number: 21STLC04664    Hearing Date: October 17, 2023    Dept: 26

Day to Day Imports, Inc. v. Uniko Pacific Trading, et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Day to Day Imports, Inc.’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON MAY 1, 2023 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE: DEFAULT / DEFAULT JUDGMENT IS SET FOR NOVEMBER 14, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On June 22, 2021, Plaintiff Day to Day Imports, Inc. (“Plaintiff”) filed the instant action for breach of contract against Defendants Uniko Pacific Trading (“Defendant Uniko”), David Azizi, and Edmond Azizi (“the Azizi Defendants”). Plaintiff filed proof of service of the Summons and Complaint with respect to the Azizi Defendants on July 5, 2022. The case came for trial on December 20, 2022, at which time Plaintiff dismissed Defendant Uniko and the Court set an Order to Show Cause Re: Default / Default Judgment for May 1, 2023. (Minute Order, 12/02/22.) When Plaintiff failed to appear at the Order to Show Cause on May 1, 2023, the Court dismissed the action without prejudice.

Plaintiff filed the instant Motion to Vacate Dismissal on September 25, 2023. No opposition to the Motion has 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 filed within six months of dismissal of the action and is supported by an affidavit of attorney fault. Plaintiff’s counsel declares that they failed to file the request for entry of default as intended. (Motion, Kaufman Decl., ¶¶4-6.) A copy of the proposed request for entry of default is attached. (Id. at Exh. A.) Therefore, the case must be reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff Day to Day Imports, Inc.’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON MAY 1, 2023 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE: DEFAULT / DEFAULT JUDGMENT IS SET FOR NOVEMBER 14, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.