Case Number: BC610850 Hearing Date: June 06, 2018 Dept: 3

BRANDON SULLIVAN,

Plaintiff(s),

vs.

CHRISTIAN COLLOSI, et al.,

Defendant(s).

Case No.: BC610850

[TENTATIVE] ORDER DENYING MOTION TO VACATE DISMISSAL

Dept. 3

1:30 p.m.

June 6, 2018

1. Background Facts

Plaintiff, Brandon Sullivan filed this action against Defendant, Christian Collosi for damages arising out of an automobile accident. Plaintiff filed the complaint on 2/24/16. No party appeared at the 8/09/17 FSC or the 8/24/17 trial, and on 8/24/17 the Court dismissed the case for failure to prosecute.

On 11/08/17, the Court heard and granted Plaintiff’s motion to vacate the dismissal. The Court ruled:

The Court has discretion to vacate a dismissal under Cal. Code Civ. Proc. §473. The motion must be made within “a reasonable time,” not exceeding six months. Here, Plaintiff’s counsel adequately showed excusable neglect (calendaring error). Counsel filed the motion less than one month after dismissal was entered, and therefore also adequately established diligence in seeking relief.

The Court notes that, to date, Plaintiff has not filed proof of service of the summons and complaint on Defendant. The Court sets an OSC re: dismissal for failure to file proof of service and trial setting conference for Monday, 1/08/18 at 8:30 a.m. in D-92.

On 1/08/18, Plaintiff failed to appear at the OSC, and the Court dismissed the case.

2. Motion to Vacate Dismissal

On 5/15/18, Plaintiff filed the instant motion to set aside the dismissal. The motion is supported by Counsel’s declaration, wherein he states that he does not know why the OSC escaped entry on the calendar, and he has doubts about whether the “Final Status Conference was ever properly placed in the file and on calendar.”

Even if the Court assumes Counsel meant to reference the OSC, not the FSC, the Court’s concern about this motion is Plaintiff’s failure to file it within a “reasonable time.” Plaintiff’s motion is based on the discretionary provision of CCP §473(b), and Plaintiff seeks relief based on his attorney’s “excusable neglect.” See notice of motion, page 1, lines 26-27, points and authorities, page 3, line 13.

A showing of diligence is required when seeking discretionary relief. According to Pacific Grove v. Hamilton (1950) 100 Cal. App. 2d 508, 511, an unexplained delay of five and one-half months to file the motion to vacate was deemed fatal to the application. Plaintiff’s counsel does not explain why he waited more than four months to file this motion.

Of note, even an unexplained delay of 85 days in making the motion has been deemed unreasonable. “This evidence amply supports the implied finding of the trial court that appellant failed to show that the default was taken against him through his mistake, inadvertence, surprise or excusable neglect, within the meaning of those terms as used in the applicable statute, section 473 of the Code of Civil Procedure. Moreover, he offered no explanation of his delay of five and one-half months, after entry of default, in filing his notice of motion to vacate. The statute, section 473, requires that the application be made ‘within a reasonable time, in no case exceeding six months,’ from the date of the judgment or order one seeks to vacate. In Benjamin v. Dalmo Manufacturing Co., supra, 31 Cal.2d 523, an unexplained delay of more than three months, and in Kromm v. Kromm, 84 Cal.App.2d 523 [191 P.2d 115], an unexplained delay of 85 days, after knowledge of entry of default, was deemed fatal to an application for relief from a default under section 473. While the record here is silent as to the date when appellant learned of the entry of his default, it was incumbent upon him, in seeking relief, to explain this time lag, if any explanation he had. Accordingly, we find no abuse of discretion upon the part of the trial court in denying appellant’s motion to vacate the default decree.” Pacific Grove v. Hamilton (1950) 100 Cal. App. 2d 508, 511.

In light of the failure, in Counsel’s declaration, to discuss what was being done between the time Counsel received notice of the dismissal (1/08/18) and the time Counsel filed the instant motion (5/15/18), the motion is denied.