Judge: Mark E. Windham, Case: 22STLC03343, Date: 2024-05-06 Tentative Ruling

Case Number: 22STLC03343    Hearing Date: May 6, 2024    Dept: 26

Park v. Cordero, et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Hyung Ho Park’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON NOVEMBER 14, 2023 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE FAILURE TO FILE PROOF OF SERVICE OF SUMMONS AND COMPLAINT IS SET FOR JUNE 10, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On May 17, 2022, Plaintiff Hyung Ho Park filed the instant action for motor vehicle negligence against Defendant Connie M. Cordero (“Defendant”). No proof of service of the Summons and Complaint have been filed. The case came for trial on November 14, 2023, at which time Plaintiff failed to appear and the Court dismissed the action without prejudice. (Minute Order, 11/14/23.)

Plaintiff filed the instant Motion to Vacate Dismissal on April 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 five months after dismissal of the action and is supported by an attorney affidavit of fault. Plaintiff’s counsel declares that they mis-calendared the date of the trial. (Motion, Choi Decl., ¶6.) Therefore, the case must be reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff Hyung Ho Park’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON NOVEMBER 14, 2023 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE FAILURE TO FILE PROOF OF SERVICE OF SUMMONS AND COMPLAINT IS SET FOR JUNE 10, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Court clerk to give notice.