Judge: Teresa A. Beaudet, Case: 21STCV13602, Date: 2023-01-09 Tentative Ruling

Case Number: 21STCV13602    Hearing Date: January 9, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff State Farm General Ins. Co. (“State Farm”) filed this action on April 9, 2021 against Defendant Fidelity National Home Warranty Company (“Fidelity”) and Does 1 to 10.

On May 13, 2021, Fidelity filed a Cross-Complaint against Big B’s Plumbing, Inc. (“Big B’s Plumbing”).

On May 2, 2022, State Farm filed a request for dismissal, which requested that the Court dismiss without prejudice the Complaint, and the Complaint as to Fidelity only. Dismissal was entered on May 3, 2022.

State Farm now moves for an order vacating the dismissal entered on May 3, 2022. No opposition to the motion was filed.  

Discussion

State Farm indicates that on March 29, 2022, State Farm and Fidelity entered into a settlement agreement. (Anderson Decl., ¶ 2.) Thereafter, State Farm filed a request for dismissal on May 2, 2022, which requested that the Court dismiss the Complaint, as well as the Complaint as to Fidelity only. (See May 2, 2022 Request for Dismissal, Items 1(b)(1) and 1(b)(6).)   

State Farm notes that it attempted to file a first amended complaint against Big B’s Plumbing and Does 1 to 10, which was rejected. The Court’s “Notice of Rejection – Pleadings” filed on June 2, 2022 indicates that State Farm’s amended complaint was rejected because the Complaint was dismissed on May 2, 2022. State Farm now “brings this Motion to Vacate Dismissal as to Does 1-9 in order to return the case to active status and allow Plaintiff to amend the Complaint to identify the party responsible for Plaintiff’s damages.” (Anderson Decl., ¶ 6.)

State Farm notes that Code of Civil Procedure section 473, subdivision (a)(1) provides as follows:

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

The Court does not see how this provision is relevant to the instant motion, by which State Farm seeks “an order vacating the dismissal.” (Notice of Motion at p. 1:23.) 

State Farm also cites to Code of Civil Procedure section 473, subdivision (b), which provides in pertinent part as follows:

“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.” 

State Farm indicates that due to a clerical error, it submitted a request for dismissal that mistakenly checked the boxes for both the Complaint to be dismissed, and for the Complaint to be dismissed only as to Fidelity. State Farm requests that the dismissal be vacated so that it may amend the Complaint. However, the Court notes that Code of Civil Procedure section 473, subdivision (b) provides that “[t]he 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.” (Emphasis added.) Here, the May 3, 2022 dismissal was not taken against State Farm. In addition, the instant motion was filed on November 16, 2022, more than six months after the dismissal was entered on May 3, 2022; and the motion was not accompanied by a copy of the pleading proposed to be filed. (See Code Civ. Proc., § 473, subd. (b).)

Conclusion

Based on the foregoing, State Farm’s motion is denied. 

State Farm is ordered to give notice of this Order.

DATED:  January 9, 2023     

                        ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court