Judge: Mark E. Windham, Case: 21STLC06229, Date: 2023-10-02 Tentative Ruling

Case Number: 21STLC06229    Hearing Date: January 8, 2024    Dept: 26

Harris v. Carillo, et al.
MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Kemory D. Harris’ Motion to Vacate Dismissal is DENIED.

ANALYSIS:

On August 25, 2021, Plaintiff Kemory D. Harris (“Plaintiff”) filed the instant action for breach of loan agreement against Defendant Robert Carillo (“Defendant”). Defendant filed an answer to the Complaint on September 23, 2021. The case came for trial on February 22, 2023, at which time Plaintiff did not appear. (Minute Order, 02/22/23.) The Court dismissed the case without prejudice. (Ibid.)

Plaintiff filed the instant Motion to Vacate Dismissal on July 14, 2023. At the hearing on October 2, 2023, the Court continued the matter to allow Plaintiff to file a code-compliant declaration and demonstrate service of all the moving papers on Defendant. Plaintiff filed a supplemental declaration on November 3, 2023. At the hearing on December 4, 2023, the Court continued the hearing at Plaintiff’s request to January 8, 2024. (Minute Order, 12/04/23.) 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 explains that Plaintiff went to the wrong courthouse by mistake. (Motion, pp. 1-2.) However, it remains that Plaintiff has not set forth these facts in an affidavit that complies with the requirements of Code of Civil Procedure section 2015.5. Plaintiff’s supplemental declaration does not address the basis to vacate the dismissal. (Motion, Supp. Harris Decl., filed 11/03/23.) Instead, it discusses the merits of the action against Defendant, which are not relevant to the dismissal. (Ibid.)

Also, no proof of service of the original motion papers has been filed, as ordered. The proof of service filed by Plaintiff on November 3, 2023 is only for the supplemental declaration. (Proof of Service by Mail, 11/03/23.) As the Court previously noted, failure to give notice of a motion is not only a violation of the statutory requirements but of due process. (Code Civ. Proc., § 1005; Jones v. Otero (1984) 156 Cal.App.3d 754, 757.)

Therefore, Plaintiff has not met the requirements for relief under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff Kemory D. Harris’ Motion to Vacate Dismissal is DENIED.

Court clerk to give notice.