Judge: Mark E. Windham, Case: 21STLC08202, Date: 2023-11-13 Tentative Ruling

Case Number: 21STLC08202    Hearing Date: November 13, 2023    Dept: 26

State Farm v. Martinez, et al.
MOTION TO VACATE DISMISSAL
(CCP § 473(b))

TENTATIVE RULING:

Plaintiff State Farm Mutual Automobile Insurance Company’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON SEPTEMBER 13, 2023 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE: DISMISSAL IS SET FOR JANUARY 22, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On November 16, 2021, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed the instant action for automobile subrogation against Defendant Feliciano Jose Martinez (“Defendant”). Defendant filed an answer on February 7, 2022. The case came for trial on May 16, 2023, at which time the parties appeared and represented that the case had been settled. (Minute Order, 05/16/23.) The Court set an Order to Show Cause Re: Dismissal for September 13, 2023. (Minute Order, 05/16/23.) When Plaintiff failed to appear at the Order to Show Cause on September 13, 2023, the Court dismissed the action without prejudice. (Minute Order, 09/13/23.)

Plaintiff filed the instant Motion to Vacate Dismissal on September 29, 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 mis-calendared the Order to Show Cause. (Motion, Pleasant Decl., ¶¶5-7.) Therefore, the case must be reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff State Farm Mutual Automobile Insurance Company’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON SEPTEMBER 13, 2023 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE: DISMISSAL IS SET FOR JANUARY 22, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.