Judge: Thomas D. Long, Case: 22STCV12975, Date: 2023-03-28 Tentative Ruling

Case Number: 22STCV12975    Hearing Date: March 28, 2023    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On August 25, 2022, Plaintiff TBF Financial I, LLC filed a first amended complaint against Defendants Sky’s Gourmet Market Place dba Sky’s Gourmet Tacos, Victor Burrell aka Victor Alexander Burrell, and Barbara Burrell.

On January 23, 2023, Plaintiff filed a request for entry of default against Defendant Barbara Burrell, and the Court entered default on the same day.

On January 24, 2023, Plaintiff filed a Request for Dismissal of the entire action without prejudice, and the Court entered the dismissal on January 27, 2023.

On February 22, 2023, Plaintiff filed a motion to set aside and vacate the dismissal and to reinstate the case to the civil active list.

The Court may relieve a party or counsel from a judgment, dismissal, or order resulting from mistake, inadvertence, surprise, or excusable neglect.  (Code Civ. Proc., § 473, subd. (b).)  The application for relief must be made within a reasonable time, not to exceed six months, after the judgment, dismissal, or order.  (Ibid.) 

Plaintiff timely filed this motion less than a month after the dismissal.  Counsel explains that the Request for Dismissal inadvertently checked the box for “Entire action of all parties and all causes of action” instead of for dismissal of only Does 1-100.  (Tiberi Decl. ¶ 7.)  The Court finds that the dismissal of the entire action was due to counsel’s mistake.

The motion to set aside and vacate the dismissal is GRANTED.

This case is reinstated to the civil active list.

The default entered against Defendant Barbara Burrell on January 23, 2023 is reinstated.

The defaults previously entered against Defendants Sky’s Gourmet Market Place and Victor Burrell on the Complaint are not reinstated because the First Amended Complaint has superseded the Complaint.  Plaintiff must serve the First Amended Complaint and summons on each defendant before seeking default against them.

A Case Management Conference is scheduled for 06/29/2023 (June 29, 2023) at 08:30 AM in Department 48 at Stanley Mosk Courthouse.

An Order to Show Cause Re: Entry of Default and Default Judgment is scheduled for 06/29/2023 (June 29, 2023) at 08:30 AM in Department 48 at Stanley Mosk Courthouse.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

         Dated this 28th day of March 2023