Judge: Mark E. Windham, Case: 22STLC04840, Date: 2024-04-22 Tentative Ruling

Case Number: 22STLC04840    Hearing Date: April 22, 2024    Dept: 26

Mercury Ins. Co. v. Scipio, et al.

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

TENTATIVE RULING:

Plaintiff Mercury Insurance Company’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JANUARY 19, 2024 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE FAILURE TO ENTER DEFAULT AND DEFAULT JUDGMENT IS SET FOR MAY 28, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On July 22, 2022, Plaintiff Mercury Insurance Company filed the instant action for automobile subrogation against Defendants Adrian Bernique Scipio and Kamerin Scipio-Smith (“Defendants”). Proofs of substitute service of the Summons and Complaint were filed on August 11, 2022 and October 11, 2022. The action came for trial on January 19, 2024, at which time Plaintiff failed to appear and the Court dismissed the action without prejudice. (Minute Order, 01/19/24.). (Ibid.)

Plaintiff filed the instant Motion to Vacate Dismissal on March 7, 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 two 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, Tapper Decl., ¶2.) Therefore, the case must be reinstated under Code of Civil Procedure section 473, subdivision (b).

Conclusion

Plaintiff Mercury Insurance Company’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JANUARY 19, 2024 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE FAILURE TO ENTER DEFAULT AND DEFAULT JUDGMENT IS SET FOR MAY 28, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Court clerk to give notice.