Judge: Mark E. Windham, Case: 22STLC06035, Date: 2024-11-05 Tentative Ruling

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Case Number: 22STLC06035    Hearing Date: November 5, 2024    Dept: 26

 

Rodriguez v. Narvaez, et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

 


 

 

TENTATIVE RULING:

 

Plaintiffs Jose David Minero Rodriguez and Juan Ronaldo Cartagena’s Motion to Vacate Dismissal is DENIED.

 

 

ANALYSIS:

 

On September 16, 2022, Plaintiffs Jose David Minero Rodriguez and Juan Ronaldo Cartagena (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendant Alex Narvaez (“Defendant”). On March 15, 20242, the action came for trial, but Plaintiffs failed to appear. (Minute Order, 03/15/24.) The Court dismissed the action without prejudice. (Ibid.)

 

Plaintiffs filed the instant Motion to Vacate Dismissal on September 16, 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 not timely filed within six months of dismissal of the action. Six months is defined as half a year, or 182 days. (Davis v. Thayer (1980) 113 Cal.App.3d 892, 903 [“We therefore conclude that as employed in section 473 of the Code of Civil Procedure six months is the equivalent of half a year and, under section 6803 of the Government Code, is the equivalent of 182 days.”].) 182 days after March 15, 2024 was Friday, September 13, 2024. The instant Motion, however, was not filed until Monday, September 16, 2024. The six-month deadline is jurisdictional and not subject to tolling. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.)  Therefore, relief from the dismissal is not available under Code of Civil Procedure section 473, subdivision (b).

 

Conclusion

 

Plaintiffs Jose David Minero Rodriguez and Juan Ronaldo Cartagena’s Motion to Vacate Dismissal is DENIED.

 

 

Moving party to give notice.