Henderson v. Valenciano, et al.
MOTION TO VACATE DISMISSAL
(CCP § 473(b))
TENTATIVE RULING:
Plaintiff Tasha Nicole Henderson’s Motion to Vacate Dismissal is GRANTED. The dismissal entered on July 12, 2019 is hereby vacated.
Order to Show Cause Re Failure to File Proof of Service scheduled for 05/27/20 at 08:30 AM in Department 26 in the Spring Street Courthouse. Failure to appear may result in the action being dismissed.
Trial date reset for 08/26/20 at 8:30 am in Department 26 in the Spring Street Courthouse.
ANALYSIS:
Plaintiff Tasha Nicole Henderson (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendant Jorge Lopez Valenciano (“Defendant”) on January 12, 2018. Nothing happened in the action until the original trial date of July 12, 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 January 13, 2020, 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 July 12, 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 he failed to calendar the trial date and did not appear at trial for that reason. (Motion, Kohanarieh Decl., ¶¶1-3.) Based on the timely request to vacate supported by an attorney affidavit of fault, Plaintiffs’ Motion to Vacate Dismissal is GRANTED. The dismissal entered on July 12, 2019 is hereby vacated.
Order to Show Cause Re Failure to File Proof of Service is scheduled for 05/27/20 at 08:30 AM in Department 26 in the Spring Street Courthouse. Failure to appear may result in the action being dismissed.
Trial date reset for 08/26/20 at 8:30 am in Department 26 in the Spring Street Courthouse.
Moving party to give notice.