Judge Mark E. Windham, Case Number: 21STLC07347, Date: 2023-10-03 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 26 at the Spring Street Courthouse until the morning of the motion hearing.

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Smith, et al. v. Robinson, et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

Motion of Plaintiffs Tanya Smith, Jayla Smith, by and through guardian ad litem Tanya Smith, and Janiyah Burr, by and through guardian ad litem, Tanya Smith, to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON APRIL 7, 2023 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE: ENTRY OF DEFAULT OR DISMISSAL IS SET FOR DECEMBER 4, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

On October 8, 2021, Plaintiffs Tanya Smith, Jayla Smith, by and through guardian ad litem Tanya Smith, and Janiyah Burr, by and through guardian ad litem, Tanya Smith

(“Plaintiffs”), filed the instant action for motor vehicle negligence against Defendants Santrell Robinson and Jakes Gist (“Defendants”). Defendants have not filed a responsive pleading and the case came for trial on April 7, 2023. When Plaintiff failed to appear at trial, the Court dismissed the action without prejudice. (Minute Order, 04/07/23.)

Plaintiffs filed the instant Motion to Vacate Dismissal on July 24, 2023. No opposition to the Motion has been filed to date.

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. Plaintiffs’ counsel declares that they did not appear at the April 7, 2023 trial date due to a calendaring error. (Motion, Yeager Decl., ¶¶2-3.) Therefore, the case must be reinstated under Code of Civil Procedure section 473, subdivision (b).

ORDER TO SHOW CAUSE RE: ENTRY OF DEFAULT OR DISMISSAL IS SET FOR DECEMBER 4, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.