IDS PROPERTY CASUALTY INSURANCE CO VS CAMERON TAYLOR

Tentative Rulings

Case Number: ****4824    Hearing Date: November 04, 2019    Dept: 4B

[TENTATIVE] ORDER RE: MOTION TO SET ASIDE DISMISSAL

On September 5, 2017, plaintiff IDS Property Casualty Insurance Company (“Plaintiff”) filed this action against defendant Cameron Taylor (“Defendant”) for subrogation relating to an automobile insurance policy in effect on May 4, 2016. Plaintiff served Defendant on January 30, 2019. A non-jury trial was scheduled for March 5, 2019 but Plaintiff’s attorney failed to appear, and the Court dismissed the case.

“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. (Ibid.) “[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.” (Ibid.)

Plaintiff’s counsel submits a declaration explaining that his failure to appear at trial was due to a calendaring error. However, Plaintiff did not file a proof of service showing service of the motion on Defendant. Accordingly, the Motion to set aside the March 5, 2019 dismissal is DENIED without prejudice.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.