Judge: Steven A. Ellis, Case: 21STCV06704, Date: 2023-10-25 Tentative Ruling

Case Number: 21STCV06704    Hearing Date: October 25, 2023    Dept: 29

TENTATIVE

Plaintiff’s Motion to Set Aside or Vacate Dismissal pursuant to Code of Civil Procedure section 473, subdivision (b), is DENIED as untimely. 

Background

On February 19, 2021, Plaintiff Keinor Eli Ruiz Jimenez (“Plaintiff”) filed a complaint alleging a single claim for motor vehicle negligence against Defendant Sylvia Tracy Courtney and Alama Rental Car based on an alleged automobile collision that on November 1, 2018. Defendant Courtney was allegedly driving a rental vehicle leased from Alamo Rental Car. 

On February 17, 2023, Plaintiff voluntarily dismissed Defendant Courtney. 

On May 15, 2023, Enterprise Rent-a-Car filed an answer to the complaint, stating that it had been erroneously sued as Alamo Rental Car Company. 

On September 25, 2023, Plaintiff filed a motion to set aside the dismissal of Defendant Courtney pursuant to Code of Civil Procedure section 473, subdivision (b). Plaintiff’s attorney submitted a declaration in support of the motion explaining that the request to dismiss Defendant Courtney was based on a mistake. Defendant Courtney has not appeared in the action. Defendant Enterprise was served but did not file an opposition. 

Legal Standard

“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, subd. (b).)

“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…(2) resulting…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.” (Ibid.)

“This six-month time limitation is jurisdictional; the court has no power to grant relief under section 473 once the time has lapsed.” (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928.)

Discussion

Plaintiff’s request for dismissal of Defendant Courtney was filed with the Court on February 17, 2023, and the dismissal was entered on February 21, 2023. The deadline to file any application for relief from the dismissal under Code of Civil Procedure section 473 was six months later – on August 21, 2023.

Plaintiff did not file the instant request until September 25, 2023, more than one month after the deadline. Accordingly, the motion must be denied. (Code Civ. Proc., § 473, subd. (b); Austin, supra, 244 Cal.App.4th at p. 928.)

Conclusion

For these reasons, Plaintiff’s Motion to Set Aside or Vacate Dismissal pursuant to Code of Civil Procedure section 473, subdivision (b), is DENIED. 

Moving party is ordered to give notice.