Judge: Mark E. Windham, Case: 22NWLC05013, Date: 2024-09-09 Tentative Ruling

Case Number: 22NWLC05013    Hearing Date: September 9, 2024    Dept: 26

State Farm Fire and Casualty Co. v. KMI Enterprises, Inc., et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff State Farm Fire and Casualty Company’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON MARCH 4, 2024 IS HEREBY VACATED.

ORDER TO SHOW CAUSE REGARDING FAILURE TO FILE PROOF OF SERVICE SUMMONS AND COMPLAINT IS SET FOR OCTOBER 14, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS

Plaintiff State Farm Fire and Casualty Company (“Plaintiff”) filed the instant action against Defendants KMI Enterprises, Inc. (“Defendant”) on March 1, 2022. The Court set an Order to Show Cause Regarding Failure to File Proof of Service of Summons and Complaint for March 4, 2024. When Plaintiff did not appear, the Court dismissed the Complaint without prejudice. (Minute Order, 03/04/24.) Plaintiff filed the instant Motion to Vacate Dismissal on July 15, 2024. 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 less within six months of dismissal of the action and is supported by an attorney affidavit of fault. Plaintiff’s counsel declares that they did not appear for the Order to Show Cause due to a calendaring error. (Motion, Chow Decl., ¶3.) Therefore, the case must be reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff State Farm Fire and Casualty Company’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON MARCH 4, 2024 IS HEREBY VACATED.

ORDER TO SHOW CAUSE REGARDING FAILURE TO FILE PROOF OF SERVICE SUMMONS AND COMPLAINT IS SET FOR OCTOBER 14, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.