Judge: Mark E. Windham, Case: 22STLC04786, Date: 2024-05-08 Tentative Ruling

Case Number: 22STLC04786    Hearing Date: May 8, 2024    Dept: 26

Garcia v. Prater, et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Isidro Humberto Herrera Garcia’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JANUARY 16, 2024 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE FAILURE TO FILE PROOF OF SERVICE OF SUMMONS AND COMPLAINT IS SET FOR JUNE 5, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On July 19, 2022, Plaintiff Isidro Humberto Herrera Garcia filed the instant action for motor vehicle negligence against Defendant Robert D. Prater (“Defendant”). The action came for trial on January 16, 2024, at which time Plaintiff failed to appear and the Court dismissed the action without prejudice. (Minute Order, 01/16/24.) Plaintiff filed the instant Motion to Vacate Dismissal on March 26, 2024. No opposition to the Motion has been filed to date.

Nor has proof of service of the Summons and Complaint been filed.  

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 two months after dismissal of the action and is supported by an attorney affidavit of fault. Plaintiff’s counsel declares that they believed they would receive a notice of the trial. (Motion, Paley Decl., ¶¶2-3.) Therefore, the case must be reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff Isidro Humberto Herrera Garcia’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JANUARY 16, 2024 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE FAILURE TO FILE PROOF OF SERVICE OF SUMMONS AND COMPLAINT IS SET FOR JUNE 5, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Court clerk to give notice.