Case Number: BC672950 Hearing Date: August 19, 2019 Dept: 4A

Motion for Order Vacating Entry of Dismissal

Having considered the moving papers, the Court rules as follows. No opposition was filed.

BACKGROUND

On August 22, 2017, Plaintiff IDS Property Casualty Insurance Company (“Plaintiff”) filed a complaint against Defendants Raven Davis and Does 1-100 for subrogation and indebtedness.

On February 22, 2019, after finding no appearances for either side, the Court dismissed the complaint without prejudice pursuant to CCP section 581(b)(3).

On July 19, 2019, Plaintiff filed the instant motion to vacate dismissal.

PARTY’S REQUESTS

Plaintiff requests relief from the order dismissing the action on February 22, 2019.

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.” (Code Civ. Proc., § 473, subd. (b).) Application for this relief shall be made within a reasonable time, in no case exceeding six months, after judgment, dismissal, order, or proceeding was taken. (Id.) “[T]he 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, 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.” (Id.)

DISCUSSION

Plaintiff moves to set aside the dismissal entered on February 22, 2019 pursuant to CCP section 473(b) based on attorney mistake, inadvertence, and excusable neglect.

The Court finds that the motion was timely filed within six months of the dismissal as dismissal was entered on February 22, 2019 and this motion was filed on July 19, 2019.

The Court also finds that Plaintiff has demonstrated entitlement to relief pursuant to CCP section 473(b). Plaintiff’s counsel states that he did not appear at the jury trial because he miscalendared the date. (Mendelson Decl., ¶¶ 2-3.) Counsel states that this case was dismissed due to his mistake and neglect. (Id.)

Based on the foregoing, Plaintiff’s motion to vacate dismissal is GRANTED and the action is reinstated. Trial is set for January 22, 2020 at 8:30 a.m. in Department 4A and the Final Status Conference is set for January 8, 2020 at 10:00 a.m. in Department 4A.

Plaintiff is ordered to give notice of this ruling.