Judge: Steven A. Ellis, Case: 22STCV06344, Date: 2024-08-14 Tentative Ruling
Case Number: 22STCV06344 Hearing Date: August 14, 2024 Dept: 29
Wawanesa General Insurance v. Johnson
22STCV06344
Plaintiff’s Motion to Set Aside Dismissal
Tentative
The motion is granted.
Background
On February 22,
2022, Wawanesa General Insurance Company (“Plaintiff”) filed a complaint
against Sean Anthony Johnson, Lacatus Jacob Stefan, and Does 1 through 20,
asserting causes of action for motor vehicle negligence and subrogation
stemming from an automobile accident occurring on April 20, 2021.
No defendant has
appeared.
On August 4,
2023, default was entered against Sean Anthony Johnson.
On December 4,
2023, no one appeared at an Order to Show Cause re Dismissal. Plaintiff’s complaint was dismissed without
prejudice.
On April 17,
2024, Plaintiff filed this motion to set aside the dismissal. No opposition has
been filed. The hearing was initially scheduled for July 3 and was continued to
August 14.
Legal Standard
Code of Civil Procedure section 473, subdivision (b) provides
for both discretionary and mandatory relief from dismissal.
As to discretionary relief, the statute states: “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.” (Code of Civil Procedure § 473,
subd. (b).) Where such an application for discretionary relief is made, the
motion must be accompanied by a copy of the answer or pleading proposed to be
filed; “otherwise the application shall not be granted.” (Ibid.) The application for relief must be made within
a reasonable time, and in no case exceeding six months after the judgment. (Ibid.)
The statute also provides for mandatory relief from dismissal,
default, or default judgment:
“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 … unless the court finds that the default or dismissal was not in
fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”
(Ibid.)
Discussion
Plaintiff requests the Court set
aside the dismissal of its complaint on December 4, 2023.
Plaintiff’s counsel states in a sworn declaration that,
due to his error, the December 4, 2023 OSC hearing was not correctly calendared. (Nivinskus Decl., ¶¶ 2, 4.) As a result, no one appeared, and the Court
dismissed the case. (Id., ¶¶ 4-5.) ; Diaz Decl., ¶ 4.)
The Court finds that Plaintiff has established that the
dismissal occurred as a result of counsel’s mistake.
Accordingly, Plaintiff’s motion to set aside the
dismissal under section 473, subdivision (b), is granted.
Conclusion
The Court GRANTS Plaintiff’s motion
to set aside dismissal.
The Court SETS ASIDE and VACATES the dismissal entered on
December 4, 2023.
The Court SETS an Order to Show Cause re Why This Case
Should not be Dismissed for Failure to Obtain Entry of Default Judgment in
approximately 60 days. Any response to
this OSC must be in writing and must be filed at least five days before the
hearing on the OSC.
The Court ADVISES Plaintiff that California Rules of
Court, rule 3.110(h) provides that after default, a party “must obtain a
default judgment against the defaulting party within 45 days after the default
was entered, unless the court has granted an extension of time.”
The Court FURTHER ADVISES that
if there is not full and complete compliance prior to the hearing with all
applicable requirements for the preparation and entry of a default judgment,
including California Rules of Court, rule 3.1800, the case is subject to
dismissal, absent a showing of good cause.
Plaintiff is ordered to give notice to parties of record.