Case Number: 17STLC06156 Hearing Date: February 06, 2020 Dept: 26

Alaka v. Gomez, et al.

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Machoudi A. Alaka’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON JUNE 26, 2019 IS HEREBY VACATED.

ORDER TO SHOW RE STATUS OF CASE IS SCHEDULED FOR 03/05/20 AT 08:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

Plaintiff Machoudi A. Alaka (“Plaintiff”) filed the instant action for automobile subrogation against Defendant Beatriz Gomez (“Defendant”) on December 27, 2017. Nothing happened in the action until the original trial date of June 26, 2019. Indeed, no proof of service has been filed demonstrating service of the Summons and Complaint on Defendant. When neither party appeared at trial, the Court ordered the action dismissed without prejudice pursuant to Code of Civil Procedure section 581, subdivision (b)(3). On December 19, 2019, Plaintiff filed the instant Motion to Set Aside Dismissal. To date, no opposition has been filed.

Discussion

Plaintiff seeks relief from the dismissal entered on June 26, 2019 pursuant to Code of Civil Procedure, section 473, subdivision (b). Under this statute, an application for relief must be made no more than six months after entry of the order from which relief is sought, and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

The Motion is timely brought six months after dismissal of the action and is supported by an affidavit of fault. Plaintiff’s attorney explains that on March 13, 2018, Defendant’s insurance company Access General Insurance Company was found insolvent by a federal bankruptcy court, resulting in an automatic stay of all pending claims and lawsuits against its insureds. (Motion, Nwabuzor Decl., ¶¶4-5.) As a result, an employee of Plaintiff’s attorney’s office mistakenly placed the case file with the inactive/closed cases. (Id. at ¶6.) Subsequently the file was transferred to the California Insurance Guarantee Association for further handling as dictated by the Insurance Code. (Id. at ¶7.) Plaintiff’s attorney did not hear from CIGA until December 13, 2019, at which time the dismissal was brought to his attention. (Id. at ¶¶8-9.)

Based on the timely request to vacate supported by an attorney affidavit of fault, Plaintiff’s Motion to Vacate Dismissal is GRANTED. The dismissal entered on June 26, 2019 is hereby vacated.

Order to Show Re Status of Case is scheduled for 03/05/20 at 08:30 AM in Department 26 in the Spring Street Courthouse.

Moving party to give notice.