Judge: Mark E. Windham, Case: 22STLC05120, Date: 2024-04-23 Tentative Ruling

Case Number: 22STLC05120    Hearing Date: April 23, 2024    Dept: 26

Aspire General Ins. Co. v. Williams, et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Aspire General Insurance Company’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JANUARY 31, 2024 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE FAILURE TO ENTER DEFAULT JUDGMENT IS SET FOR MAY 29, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On August 3, 2022, Plaintiff Aspire General Insurance Company filed the instant action for automobile subrogation against Defendants Tiffany Williams, Natalie Guzman, and Anthony Parada (“Defendants”). Default was entered against Defendants Guzman and Parada on March 24, 2023; default was entered against Defendant Williams on July 26, 2023. Defendant Williams was thereafter dismissed on December 18, 2023.

The action came for trial on January 31, 2024, at which time Plaintiff failed to appear and the Court dismissed the action without prejudice. (Minute Order, 01/31/24.) Plaintiff filed the instant Motion to Vacate Dismissal on March 8, 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 one month 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 Aspire General Insurance Company’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JANUARY 31, 2024 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE FAILURE TO ENTER DEFAULT JUDGMENT IS SET FOR MAY 29, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.