Judge: Serena R. Murillo, Case: 20STCV25239, Date: 2022-09-27 Tentative Ruling
Case Number: 20STCV25239 Hearing Date: September 27, 2022 Dept: 29
Interinsurance Exchange of the Automobile Club v. Theresa Amorette Ballantyne
Tuesday, September 27, 2022
1 of 2: Motion to Set Aside Dismissal filed by Plaintiff Interinsurance Exchange of the Automobile Club
TENTATIVE
Plaintiff Interinsurance Exchange of the Automobile Club’s Motion to Set Aside the Dismissal is GRANTED.
Legal Standard
Code of Civil Procedure § 473(b) provides for mandatory and discretionary relief from dismissal. “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 through his or her mistake, inadvertence, surprise, or excusable neglect.” CCP §473(b). Where such an application for discretionary relief is made, the motion shall be accompanied by a copy of the answer or pleading proposed to be filed, or the application will not be granted. (Id.) The court must grant relief from dismissal where the application is accompanied by an attorney affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. (Id.) In either case, the application must be made within a reasonable time, and in no case exceeding six months after the judgment. (Id.)
Discussion
The motion is timely filed under C.C.P. § 473(b). The action was dismissed on January 3, 2022. This Motion to Set Aside the Dismissal was filed on March 18, 2022, within six months after dismissal was entered, and within a reasonable time.
The trial court’s granting or denial of relief under this provision is reviewed for abuse of discretion. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) It is noted that appellate courts are traditionally “favorably disposed toward such action on the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies on their merits.” (Mercantile Collection Bureau v. Pinheiro (1948) 84 Cal.App.2d 606, 608, citing Benjamin v. Dalmo Mfg. Co. (1947) 31 Cal.2d 523.)
Plaintiff moves for relief on the ground that dismissal was entered due to the mistake, inadvertence, or neglect of counsel. On January 3, 2022, the Court dismissed the entire action without prejudice for lack of prosecution pursuant to C.C.P. Section 581(b)(3) when Plaintiff’s counsel did not appear for trial. Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting that the hearing date for trial was not scheduled on his calendar, and he did not appear at the trial. Counsel avers that because the Court set an OSC re: Dismissal for Entry of Default Judgment for February 3, 2022, he mistakenly thought the court vacated the January 3, 2022 trial date. He made the mistake and should have verified on the court case summary if the January 3, 2022 hearing was still on calendar. (Tapper Decl., ¶ 2.)
Because Plaintiff’s counsel has sufficiently established mistake, inadvertence or neglect, the dismissal must be set aside.
Conclusion
Accordingly, Plaintiffs’ Motion to Set Aside the Dismissal is GRANTED.
Moving party is ordered to give notice.
(2 of 2) Request for Court Judgment
against Theresa Amorette Ballantyne
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Tentative: CONTINUE to allow Plaintiff to correct the following issue: Evidence
is not sufficient to support the amount of medical expenses sought. As an
example, Plaintiffs seek $10,900 in damages for Rodriguez’s injuries, but only
submits evidence of $2,232 in medical bills. The same is true for Mejia’s
special damages – the evidence submitted only amounts to a small amount of the
damages claimed.