Judge Timothy B. Taylor, Case 37-2021-00054067-CL-IC-CTL 2023-08-04 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2021-00054067-CL-IC-CTL, Date: 2023-08-04 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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EVENT DATE:

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HALL OF JUSTICE

TENTATIVE RULINGS - August 03, 2023

08/04/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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CASE TITLE: CASE TYPE:

Civil - Limited Insurance Coverage Motion Hearing (Civil) 37-2021-00054067-CL-IC-CTL KEMPER INDEPENDENCE INSURANCE COMPANY VS DREA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 05/11/2023

Tentative Ruling on Motion to Set Aside Dismissal and Restore Case to Civil Active List Kemper Insurance v. Drea, Case No. 2021-54067 August 4, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is a subrogation action to recover claims paid on a homeowner's insurance policy. Kemper alleged, in the Judicial Council form complaint it filed in late 2021, that its insured was having certain improvements made to a bathroom in early 2019 in a house in La Jolla. Kemper further alleges that defendant was performing the work, and in so doing punctured a water line causing water damage to the insured home.

After attempting to serve defendant (ROA 8-13), Kemper sought and received permission to serve him via publication. ROA 24-26. However, Kemper failed to appear at a continued CMC. ROA 29. Nor did Kemper file proof of publication (or proof of any other form of service). Fearing the case had been abandoned, the court set an OSC re dismissal. ROA 28, 30. Kemper failed to appear at that second hearing, and the case was dismissed without prejudice. ROA 33-34.

Nothing happened for 5 months. Then, Kemper filed (twice) the present motion seeking to set aside the dismissal and restore the case to the civil active list. ROA 35-44. Kemper claims the dismissal was the result of counsel's neglect.* There is no opposition.

Kemper has subsequently changed counsel. ROA 46.

2. Applicable Standards.

Code of Civil Procedure section 473(b) provides for both discretionary and mandatory relief from judgments, defaults, and dismissals in certain circumstances. Plaintiff specifically invokes the mandatory provision, which provides that '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, Calendar No.: Event ID: TENTATIVE RULINGS

2969455 63 CASE NUMBER: CASE TITLE: KEMPER INDEPENDENCE INSURANCE COMPANY VS DREA 37-2021-00054067-CL-IC-CTL 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.' Code Civ. Proc. § 473(b). A party seeking relief under section 473 bears the burden of proof.

Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1205.

3. Discussion and Ruling.

The unopposed motion is granted. Plaintiff's former counsel has submitted a declaration attesting to his neglect in failing to attend the OSC. (Everett Decl., ¶¶ 7-9.) It does not matter whether the neglect was excusable or inexcusable. Martin Potts & Associates, Inc. v. Cosair, LLC (2016) 244 Cal.App.4th 432, 443. Accordingly, the dismissal entered December 2, 2022 is hereby set aside and the case is returned to the court's active list.

4. CMC.

The court sets a CMC in this matter for September 15, 2023 at 10:00 a.m. in Dept. 72.

_____________________________ *The motion is not carefully drawn. For example, it alleges (ROA 41 at 2:1-3) that attorney Everett became employed by Kemper on 'August 15, 2023, in the company's San Diego Office.' This is an obvious impossibility for papers filed in May of 2023 for a hearing on August 4, 2023. Also lacking from the moving papers is any discussion of the status of service via publication, which was ordered more than a year ago.

Calendar No.: Event ID: TENTATIVE RULINGS

2969455 63