Judge: Steven A. Ellis, Case: 22STCV08023, Date: 2024-06-20 Tentative Ruling
Case Number: 22STCV08023 Hearing Date: June 20, 2024 Dept: 29
Motion to Set Aside Dismissal filed by Plaintiff Interinsurance
Exchange of the Automobile Club.
Tentative
The motion is granted.
Background
On March 4,
2022, Interinsurance Exchange of the Automobile Club (“Plaintiff”) filed a
complaint against Fernando Vasquez, Manuel Mendoza and Does 1 through 10 for
subrogation of damages.
On January 5,
2024, Plaintiff filed a request for dismissal of the entire action with
prejudice. Dismissal was entered on January 8.
On March 19,
2024, Plaintiff filed this motion to set aside the dismissal. No opposition has
been filed.
Legal Standard
Code of Civil Procedure section 473, subdivision (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 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. … 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. ….”
Discussion
Plaintiff requests the Court set
aside the dismissal of its complaint on January 8, 2024.
Plaintiff’s counsel contends this matter was inadvertently
and mistakenly dismissed as counsel had settled another matter, and dismissed
the wrong case. (Tapper Decl., ¶ 2.)
The Court finds that Plaintiff has established that the
dismissal was through dismissed based on mistake, inadvertence, surprise, or
excusable neglect, and therefore, warrants setting
aside the dismissal.
As such, the Court GRANTS Plaintiff’s
motion to set aside the dismissal.
Conclusion
The Court GRANTS Plaintiff’s motion
to set aside dismissal.
The Court SETS ASIDE and VACATES the entry
of dismissal on January 8, 2024.
The Court sets a Trial Setting
Conference in approximately 60 days.
Moving party to give notice.