On 01/29/2018 a Personal Injury - Motor Vehicle case was filed by KIEONNA CARTER against CRESENSIO DOMINGUEZ in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
DOES 1 TO 25
2/20/2018: PROOF OF SERVICE SUMMONS
1/29/2018: COMPLAINT FOR: 1. NEGLIGENCE (PERSONAL INJURIES AND PROPERTY DAMAGES) ;ETC
Proof of Service (not Summons and Complaint); Filed by Kieonna Carter (Plaintiff)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
COMPLAINT FOR: 1. NEGLIGENCE (PERSONAL INJURIES AND PROPERTY DAMAGES) ;ETCRead MoreRead Less
Complaint; Filed by Kieonna Carter (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC692027 Hearing Date: October 29, 2019 Dept: 4A
Motion to Vacate Dismissal Pursuant to C.C.P. §473(b)
Having considered the moving papers, the Court rules as follows. No opposition was filed.
On January 29, 2018, Plaintiff Kieonna Carter (“Plaintiff”) filed a complaint against Defendants Cresensio Dominguez and DOES 1 through 25, asserting causes of action for negligence and negligence per se. Plaintiff alleged that Defendant Cresensio Dominguez negligently entrusted, managed, maintained, operated, controlled and drove his vehicle, resulting in a collision with Plaintiff’s vehicle. Plaintiff alleged she suffered damages and injuries as a result of Defendant Cresensio Dominguez’s negligence.
On July 29, 2019, the court entered an order dismissing the instant action without prejudice.
Plaintiff moves for an order vacating dismissal of the instant action.
C.C.P. §473(b) provides, in pertinent part, as follows:
…Notwithstanding any other requirements of this section, the 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…
Under C.C.P. §473(b)’s attorney affidavit provision set forth above, “a party is relieved from the consequences of his or her attorney's mistake, inadvertence, surprise, or neglect. Relief is available regardless of whether the attorney's neglect is excusable. [Citations] Moreover, if the requirements of this provision are met, then relief is mandatory. [Citations]” (Lorenz v. Commercial Acceptance Insurance Company (1995) 40 Cal.App.4th 981, 989.)
Plaintiff Kieonna Carter (“Plaintiff”) moves for an order vacating dismissal of the instant action, pursuant to C.C.P. §473(b).
On July 29, 2019, the Court dismissed the instant action, pursuant to C.C.P. §581(b)(3), without prejudice.
Relief from dismissal is mandatory under C.C.P. §473(b). Plaintiff filed the instant motion on September 17, 2019, less than two months after entry of the dismissal. Plaintiff’s motion is accompanied by an attorney affidavit of fault. Plaintiff’s counsel Christopher Gaddini (“Gaddini”) declared he did not attend the trial on July 29, 2019, because he mistakenly believed his office had filed a Notice of Settlement and the trial date had been vacated. (Declaration of Gaddini ¶3.) Gaddini declared the error was based on miscommunication between counsel and his staff. Gaddini declared this error can be attributed to an excusable mistake by counsel. (Declaration of Gaddini ¶4.) Gaddini declared he seeks reinstatement of this matter despite reaching a settlement between all parties because “Defendant’s counsel now refuses to move forward with settlement due to the dismissal of this matter.” (Declaration of Gaddini ¶5.)
Based on the foregoing, Plaintiff’s motion to vacate the dismissal entered on July 29, 2019 is GRANTED.
Plaintiff is ordered to give notice of the Court’s ruling.