Judge: Mark E. Windham, Case: 21STLC09037, Date: 2023-09-26 Tentative Ruling
Case Number: 21STLC09037 Hearing Date: September 26, 2023 Dept: 26
Intellectual Property v. Cruz, et al.
MOTION TO
VACATE DISMISSAL
TENTATIVE RULING:
Plaintiff Intellectual Property’s
Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JULY 3, 2023 IS
VACATED.
ORDER TO SHOW CAUSE RE: FAILURE TO
FILE PROOF OF SERVICE IS SET FOR DECEMBER 4, 2023 AT 8:30 AM IN DEPARTMENT 26
IN THE SPRING STREET COURTHOUSE.
ANALYSIS:
On December 22, 2021, Plaintiff
Intellectual Property (“Plaintiff”) filed the instant action for breach of
contract and fraud against Defendants Elizabeth Cruz and Ruben Cruz
(“Defendants”). No proof of service of the Summons and Complaint has been filed
as to Defendants and the case came for trial on July 3, 2023. When Plaintiff
failed to appear at trial, the Court dismissed the action without prejudice.
(Minute Order, 07/03/23.)
Plaintiff filed the instant Motion to Vacate Dismissal on
August 30, 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 suffered numerous health setbacks this year and were
unable to attend to this action. (Motion, Bowman Decl., ¶¶3-6.) Therefore, the
case must be reinstated under Code of Civil Procedure section 473, subdivision
(b).
Conclusion
Plaintiff Intellectual Property’s
Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JULY 3, 2023 IS
HEREBY VACATED.
ORDER TO SHOW CAUSE RE: FAILURE
TO FILE PROOF OF SERVICE IS SET FOR DECEMBER 4, 2023 AT 8:30 AM IN DEPARTMENT
26 IN THE SPRING STREET COURTHOUSE.
Moving party to give
notice.