Judge: Richard S. Whitney, Case: 37-2021-00031393-CU-CL-CTL, Date: 2024-03-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 28, 2024

03/01/2024  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Other Collections Motion to Dismiss 37-2021-00031393-CU-CL-CTL CAPITAL ONE BANK USA NA VS SMITH [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFF'S MOTION TO SET ASIDE AND VACATE DISMISSAL is DENIED.

Plaintiff CAPITAL ONE BANK (USA), N.A. ('Plaintiff') seeks an order setting aside and vacating the dismissal that was entered as a result of Plaintiff's failure to properly notify the Court that the case should not be dismissed as a result of the settlement failing. Plaintiff asserts Defendant JENNIFER Q.

SMITH failed to comply with the terms of the settlement. However, Plaintiff failed to notify the Court before the case was dismissed. The case was dismissed based on Plaintiff's notice to the Court that the case had settled. The minute order reflecting the case was dismissed was entered on August 2, 2022.

Plaintiff did not move to set aside the dismissal until September 18, 2023.

CCP section 473(b) provides, in part: Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.

(Code Civ. Proc., § 473(b) [Emphasis added].) This is the mandatory portion of the statute. The discretionary portion provides: The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

(Code Civ. Proc., § 473(b).) Calendar No.: Event ID:  TENTATIVE RULINGS

3021690  48 CASE NUMBER: CASE TITLE:  CAPITAL ONE BANK USA NA VS SMITH [IMAGED]  37-2021-00031393-CU-CL-CTL In both cases the moving party must make the motion within the six-month time limit. 'The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed.' (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42) 'The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.' (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340.) Plaintiff failed to move within the jurisdictional time limit. Plaintiff filed this motion more than a year after the Court dismissed the action. The motion must be denied.

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3021690  48