Judge: Steven A. Ellis, Case: 22STCV27068, Date: 2023-11-03 Tentative Ruling
Case Number: 22STCV27068 Hearing Date: November 3, 2023 Dept: 29
TENTATIVE
The Court GRANTS Plaintiff’s
motion to set aside dismissal.
Plaintiff to give notice.
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 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).)
A party adversely affected by a voluntary dismissal may move to
vacate the dismissal. (Mesa Shopping Center-East, LLC v. O Hill (2014)
232 Cal.App.4th 890, 897.)
Discussion
The Court finds Plaintiff’s motion is well-taken. Plaintiff has shown
that he and County stipulated to the dismissal of County from this action on
the condition that Plaintiff could reinstate County as a defendant if Plaintiff
determined that County was a proper defendant. (Smith Decl., Ex. A, ¶ 4.) The
stipulation further provides that County would not oppose this motion. (Smith
Decl., Ex. A, ¶ 4.) Plaintiff has presented evidence indicating that County
owned, maintained, or controlled a portion of the public property at issue
underlying this dispute. (Smith Decl., ¶ 5, Ex. B.) County also has not opposed
this motion, consistent with the terms of the stipulation. (See Smith Decl. Ex.
A, ¶ 4; see also Holden v. City of San Diego (2019) 43
Cal.App.5th 404, 418 [failure to oppose motion may be construed as waiver of
argument]; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac.
Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10.)
Therefore, the Court GRANTS the
motion.
Conclusion
The Court GRANTS Plaintiff’s
motion to set aside dismissal.
Plaintiff to give notice.