Judge Mark E. Windham, Case 22STLC06204 2023-02-15 Tentative Ruling

Judge: Mark E. Windham, Case: 22STLC06204, Date: 2023-02-15 Tentative Ruling

Case Number: 22STLC06204 Hearing Date: February 15, 2023 Dept: 26

California Casualty Indemnity Exchange v. Perez, et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff California Casualty Indemnity Exchange’s Motion to Vacate Dismissal is CONTINUED TO MARCH 29, 2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY MARCH 15, 2023, PLAINTIFF IS TO FILE AND SERVE A SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES. FAILURE TO DO SO MAY RESULT IN THE MOTION BEING DENIED.

ANALYSIS:

Plaintiff California Casualty Indemnity Exchange (“Plaintiff”) filed this action for automobile subrogation against Defendant Alicia Perez (“Defendant”), on September 22, 2022. Plaintiff filed a request to dismiss Defendant on November 15, 2022, which was entered on the same day.

Plaintiff filed the instant Motion to Vacate Dismissal on January 13, 2023. No opposition to the Motion 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 brought less than six months pursuant to the mandatory provision for relief. (Motion, p. 2:1-10.) The provision for mandatory relief, however, does not apply to voluntary dismissals. “Although the language of the mandatory provision of section 473, subdivision (b), on its face, ‘affords relief from unspecified “dismissal” caused by attorney neglect, our courts have, through judicial construction, prevented it from being used indiscriminately by plaintiffs’ attorneys as a “perfect escape hatch” to undo dismissals of civil cases.’ ” (Nacimiento Regional Water Management Advisory Com. v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, 967 [citing Gotschall v. Daley (2002) 96 Cal.App.4th 479, 483].) Therefore, Plaintiff has not demonstrated a basis to vacate the dismissal entered on November 15, 2022.

Conclusion

Moving party to give notice.