MERCURY INSURANCE COMPANY VS RUFEE FONTELA

Tentative Rulings

Case Number: 17STLC02890    Hearing Date: December 10, 2019    Dept: 94

MOTION TO VACATE DISMISSAL

(CCP § 473(b), mandatory)

TENTATIVE RULING:

Plaintiff Mercury Insurance Company’s Motion to Vacate Dismissal is GRANTED.

ANALYSIS:

I. Background

On October 12, 2017, Plaintiff Mercury Insurance Company (“Plaintiff”) brought this action against Defendant Rufee Fontela (“Defendant”) for breach of contract and money had and received. Plaintiff failed to appear at the Non-Jury Trial on August 19, 2019, and the Court dismissed this action without prejudice pursuant to CCP § 581(b)(3). On October 15, 2019, Plaintiff brought the instant Motion to Vacate Dismissal (the “Motion”) under the mandatory provision of CCP § 473(b) based on its counsel’s mistake, inadvertence, surprise, and neglect.

II. Legal Standard

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) Plaintiff seeks relief under the mandatory provision of the statute based on its counsel’s mistake, inadvertence, surprise, or neglect. The mandatory provision states in pertinent part:

“[W]henever 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.”

(CCP § 473(b).)

“The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys. [Citation.]” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723, emphasis added.) Relief under CCP § 473(b) is also available to plaintiffs because dismissal is the “practical equivalent of a default judgment.” (Aldrich v. San Fernando Valley Lumber Co., Inc.

III. Analysis

Plaintiff timely brought this Motion under the mandatory provision of CCP § 473(b) less than six months after the dismissal.

Plaintiff submits a sworn affidavit from its counsel Mark R. Nivinskus (“Nivinskus”), who attests that he did not calendar the August 19, 2019 and, as a result, failed to appear for it. (Motion, Nivinskus Decl. ¶¶ 7-10.) “[A]s this text [of the mandatory provision of Section 473(b)] indicates, what must be attested to is the mistake, inadvertence, surprise, or neglect—not the reasons for it. [Citation.]” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.) In light of the foregoing, the Court finds that the dismissal was a result of Plaintiff’s counsel’s mistake, inadvertence, surprise, or neglect. Accordingly, the Court has no discretion but to grant the Motion under the mandatory provision of Section 473(b). Defendant has not opposed.

IV. Conclusion & Order

The unopposed Motion is GRANTED. The dismissal of this action is hereby VACATED.

Trial is set for APRIL 2, 2020 at 8:30 a.m. in Department 94. All discovery cut-off dates follow the new trial date.

Moving party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.