Judge: Mark E. Windham, Case: 22STLC00934, Date: 2024-03-25 Tentative Ruling

Case Number: 22STLC00934    Hearing Date: March 25, 2024    Dept: 26

Furman v. Ghahramanian, et al.

MOTION TO VACATE DISMISSAL
(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Joseph Furman’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON FEBRUARY 14, 2024 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE FAILURE TO FILE PROOF OF SERVICE IS SET FOR MAY 28, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On February 14, 2022, Plaintiff Joseph Furman (“Plaintiff”), in propria persona, filed the instant action for breach of contract, common counts, fraud, and intentional tort against Defendant Edvin Ghahramanian (“Defendant”). The action came for trial on August 14, 2023 at which time Plaintiff requested more time to serve Defendant. (Minute Order, 08/14/23.) The Court also set an order to show cause regarding failure to file proof of service for February 14, 2024. (Ibid.) Plaintiff filed a First Amended Complaint on February 13, 2024 but did not appear for the order to show cause. When Plaintiff failed to appear at trial, the Court dismissed the action without prejudice. (Minute Order, 02/14/24.)

Plaintiff filed the instant Motion to Vacate Dismissal on March 4, 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 than one month after dismissal of the action and is supported by an affidavit of fault. Plaintiff declares that they mis-calendared the date of the order to show cause as February 16, 2024. (Motion, Furman Decl., ¶9.) Therefore, the case may be reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff Joseph Furman’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON FEBRUARY 14, 2024 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE FAILURE TO FILE PROOF OF SERVICE IS SET FOR MAY 28, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Court clerk to give notice.