Judge Mark E. Windham, Case Number: 22STLC01823, Date: 2023-12-04 Tentative Ruling

Judge: Mark E. Windham, Case: 22STLC01823, Date: 2023-12-04 Tentative Ruling

Case Number: 22STLC01823 Hearing Date: December 4, 2023 Dept: 26

Progressive West Ins. Co. v. Rosas, et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Progressive West Insurance Company’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON SEPTEMBER 18, 2023 IS HEREBY VACATED.

TRIAL IS SET FOR JUNE 24, 2024 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On March 21, 2022, Plaintiff Progressive West Insurance Company (“Plaintiff”) filed the instant action for automobile subrogation against Defendants Jorge Rosas and Ivon Vargas (“Defendants”). Defendants filed answers on May 3, 2022. The case came for trial on September 18, 2023. (Minute Order, 09/18/23.) When Plaintiff failed to appear, the Court dismissed the action without prejudice. (Minute Order, 09/18/23.)

Plaintiff filed the instant Motion to Vacate Dismissal on October 5, 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 trial date. (Motion, Tapper Decl., ¶¶2-3.) Therefore, the case must be reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff Progressive West Insurance Company’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON SEPTEMBER 18, 2023 IS HEREBY VACATED.

TRIAL IS SET FOR JUNE 24, 2024 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.