Superior Court of California

County of Los Angeles

Department 50

STATE FARM GENERAL INS. CO., Plaintiff, vs. FIDELITY NATIONAL HOME WARRANTY COMPANY, et al. Defendants.	Case No.:	21STCV13602
	Hearing Date:	March 10, 2023
	Hearing Time:	8:30 a.m.
	[TENTATIVE] ORDER RE: MOTION TO VACATE DISMISSAL AND OF NONAPPEARANCE
AND RELATED CROSS-ACTION

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 as to Does 1-9. 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 mistakenly requested that the Court dismiss both the Complaint and 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. (Anderson Decl., ¶ 5, Ex. B.) 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 cites to Code of Civil Procedure section 187, which provides that “[w]hen jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.” (Code Civ. Proc., § 187.) “[Code of Civil Procedure] Section 187 relates primarily to procedural matters, typically to control the court’s own process, proceedings and orders, but also may relate to situations in which the rights and powers of the parties have been established by substantive law or court order but workable means by which those rights may be enforced or powers implemented have not been granted by statute.” ((Phillips, Spallas & Angstadt, LLP v. Fotouhi (2011) 197 Cal.App.4th 1132, 1142 [internal quotations omitted].)

State Farm asserts that “[d]ue to a clerical error Plaintiff submitted a request for dismissal that mistakenly checked the boxes for both the Complaint to be dismissed (CIV-110 b(1)) and for only Fidelity National Home Warranty to be dismissed (CIV-110 b(6)). The Court dismissed the entire action without prejudice. [State Farm] submits that Vacating Dismissal as to Does 1-9 in order to allow Plaintiff to amend the Complaint to identify the party responsible for Plaintiff’s damages is in the furtherance of justice and within the spirit of the Code of Civil Procedure.” (Mot. at p. 2:19-24.)

The Court also notes that “[e]very court shall have the power to do all of the following:…[t]o amend and control its process and orders so as to make them conform to law and justice.” (Code Civ. Proc., § 128, subd. (a)(8).)

Pursuant to Code of Civil Procedure sections 128 and 187, and in light of the lack of any opposition, the Court grants State Farm’s motion. The Court finds that State Farm has demonstrated good cause for the Court to vacate the dismissal entered on May 3, 2022 as to Does 1-9.

Conclusion

Based on the foregoing, State Farm’s motion is granted. The Court vacates the dismissal entered on May 3, 2022 as to Does 1-9.

State Farm is ordered to give notice of this Order.

DATED: March 10, 2023

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court