Judge: Mark E. Windham, Case: 22STLC02505, Date: 2023-03-23 Tentative Ruling

Case Number: 22STLC02505    Hearing Date: March 23, 2023    Dept: 26

Eckles McIntrye, et al.
MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Carol Eckles’ Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JANUARY 3, 2023 IS HEREBY VACATED.

ORDER TO SHOW CAUSE REGARDING ENTRY OF DEFAULT AND DEFAULT JUDGMENT IS SET FOR JUNE 22, 2023 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

Plaintiff Carole Eckles (“Plaintiff”) filed this action for breach of contract and common counts against Defendants Carol Ann Galetta aka Carol Ann McIntyre (“Defendant McIntyre”) and William Shane McIntyr dba American Gymnastics Academy (“Defendant AGA”), on April 13, 2022. Default was entered against Defendant McIntyre on September 19, 2022.

On January 3, 2023, Plaintiff filed a request for dismissal of the entire action without prejudice, which was entered on the same date. (Request for Dismissal, 01/03/23.) Plaintiff filed the instant Motion to Vacate Dismissal on January 31, 2023. No opposition to the Motion 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 promptly brought less than one month after dismissal and is supported by a declaration of fault from Plaintiff’s counsel asking for the Court’s discretion to vacate the dismissal. Plaintiff’s counsel explains that the request for dismissal was inadvertently made as to the entire action. (Motion, Sari Decl., ¶¶5-8.) Therefore, the Court finds the action should be reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff Carol Eckles’ Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JANUARY 3, 2023 IS HEREBY VACATED.

ORDER TO SHOW CAUSE REGARDING ENTRY OF DEFAULT AND DEFAULT JUDGMENT IS SET FOR JUNE 22, 2023 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.