Judge: Mark E. Windham, Case: 21STLC07319, Date: 2023-11-27 Tentative Ruling

Case Number: 21STLC07319    Hearing Date: January 22, 2024    Dept: 26

Cotton Blanks, Inc. v. Oceanaire Sportswear, Inc., et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Cotton Blanks, Inc.’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JULY 12, 2023 IS HEREBY VACATED.

TRIAL IS SET FOR APRIL 18, 2024 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On October 7, 2021, Plaintiff Cotton Blanks, Inc. (“Plaintiff”) filed the instant action for conversion and negligence against Defendant Oceanaire Sportswear, Inc. (“Defendant”). Defendant filed an answer to the Complaint on October 6, 2022. The initial trial date was continued to July 12, 2023. When Plaintiff failed to appear at trial, the Court dismissed the action without prejudice. (Minute Order, 07/12/23.)

Plaintiff filed the instant Motion to Vacate Dismissal on October 16, 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 give notice of the trial date or appear for trial on July 12, 2023. (Motion, Ross Decl., ¶¶2-5.) Therefore, the case must be reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff Cotton Blanks, Inc.’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JULY 12, 2023 IS HEREBY VACATED.

TRIAL IS SET FOR APRIL 18, 2024 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.