Judge: Mark E. Windham, Case: 22STLC06371, Date: 2024-04-25 Tentative Ruling

Case Number: 22STLC06371    Hearing Date: April 25, 2024    Dept: 26

JMNBM Corp. v. Con'struc'ture, Inc., et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff JMNBM Corporation dba Blue Pacific Pools Southern California’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON MARCH 27, 2024 IS HEREBY VACATED.

TRIAL IS SET FOR MAY 23, 2024 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On September 28, 2022, Plaintiff JMNBM Corporation dba Blue Pacific Pools Southern California (“Plaintiff”) filed the Complaint in this action against Defendants Con’struc’ture, Inc., Aragon (Toluca/Colton) Properties Corporation (erroneously sued Aragon Properties Corporation) (“Defendant Aragon”), and SureTec Insurance Company. On February 21, 2023, the Court sustained Defendant Aragon’s Demurrer to the Complaint without leave to amend.

Plaintiff filed the First Amended Complaint on March 6, 2023, to which Defendants filed answers on May 23 and 31, 2023. The action came for trial March 27, 2024 but Plaintiff failed to appear. (Minute Order, 03/27/24.) The Court dismissed the First Amended Complaint without prejudice. (Ibid.) Plaintiff filed the instant Motion to Vacate Dismissal on April 3, 2024. No opposition to the Motion has been filed to date.

Discussion

The motion is brought on equitable grounds based on extrinsic mistake or fraud. To qualify for this relief, circumstances extrinsic to the litigation must have unfairly cost a party a hearing on the merits, and the party must demonstrate: (1) “a meritorious case”; (2) “a satisfactory excuse for not presenting a defense to the original action”; and (3) “diligence in seeking to set aside the default once the fraud [or mistake] had been discovered.” (Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1245-1246 (citing In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1071).)

The Motion was timely filed one week after the action was dismissed and is supported by an attorney affidavit explaining that Plaintiff’s counsel failed to appear at trial because that morning her dog was mauled by a coyote. (Motion, Manning Decl., ¶3.) Plaintiff’s counsel was trial-ready and promptly informed defense counsel of the incident and that she would be an hour late to court. (Id. at ¶4 and Exhs. 1-2.) This information was apparently not communicated to the Court by defense counsel when they appeared on March 27, 2024. This demonstrates that Plaintiff was deprived of the opportunity to appear for trial due to extrinsic circumstances and has diligently sought relief from the dismissal.

Therefore, the Court finds the case should be reinstated and re-set for trial.

Conclusion

Plaintiff JMNBM Corporation dba Blue Pacific Pools Southern California’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON MARCH 27, 2024 IS HEREBY VACATED.

TRIAL IS SET FOR MAY 23, 2024 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Court clerk to give notice.