Tentative Ruling: Andrea Vicars v. Marborg Industries, et al

Case Number

25CV04624

Case Type

Hearing Date / Time

Wed, 10/28/2026 - 10:00

Nature of Proceedings

Plaintiff’s Motion for Relief from Dismissal Pursuant to Code of Civil Procedure Section 473, Subdivision (b)

Tentative Ruling

For Plaintiff Andrea Vicars: R. Chris Kroes, McCarthy & Kroes

For Defendants Marborg Industries and Homero Vences: Maryam Danishwar, Jonathan Semerjian, Clark Hill LLP

RULING

For the reasons stated herein, the motion of plaintiff for relief from dismissal is granted in part and denied in part. The oral dismissal is vacated and set aside. The court does not, at this time, enter Judgment on the Code of Civil Procedure section 998 Offer to Compromise. Counsel for both parties are ordered to appear and inform the court of the status of the settlement and to schedule a further Case Management Conference.

Background

As alleged in the complaint of plaintiff Andrea Vicars:

On April 17, 2025, Marborg Industries (Marborg) came to 850 Clark Road in Santa Barbara, California, to pick up a dumpster. (Complaint, ¶¶ MV-1, MV-2(f) & GN-1.) During the pickup, the 10,000 pound steel dumpster rolled down the driveway and crashed into plaintiff’s Mercedes Sprinter van, which then was pushed back and into plaintiff’s Lexus, causing significant damage to both vehicles. (Complaint, ¶ MV-2(f) & GN-1.)

On July 24, 2025, plaintiff filed their complaint against defendants Marborg and Homero Vences, alleging two causes of action: (1) motor vehicle; and (2) general negligence.

On November 26, 2025, Marborg filed an answer to the complaint, generally denying its allegations and asserting thirty-five affirmative defenses.

On August 26, 2026, at a Case Management Conference, plaintiff’s counsel informed the court that the case had settled and requested that the case be dismissed with prejudice.

Plaintiff now moves for relief from dismissal pursuant to Code of Civil Procedure section 473, subdivision (b).

Marborg opposes the motion.

Analysis

“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. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . 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.” (Code Civ. Proc., § 473, subd. (b).)

“While the motion lies within the sound discretion of the trial court, “ ‘the trial court’s discretion is not unlimited and must be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ ” [Citation.] The law strongly favors trial and disposition on the merits. Therefore, any doubts in applying section 473 must be resolved in favor of the party seeking relief. When the moving party promptly seeks relief and there is no prejudice to the opposing party, very slight evidence is required to justify relief.” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1343.)

The present motion was made well within the time frame in which it must be brought. In support of the motion, plaintiff submits the declaration of counsel in which he declares:

“On July 27, 2026, Defendants, through their counsel Clark Hill LLP, served a Code of Civil Procedure section 998 Offer to Compromise, offering to pay Plaintiff $10,000.00 in exchange for entry of a Request for Dismissal with prejudice, with each side to bear its own attorneys’ fees, costs and expenses.” (Weninger decl., ¶ 3 & Exh. A.)

“On August 26, 2026, I accepted the Offer on Plaintiff’s behalf, on behalf of R. Chris Kroes.” (Weninger decl., ¶ 4 & Exh. A.)

“Following acceptance, our office prepared a Judgment Pursuant to Code of Civil Procedure section 998 for submission to the Court. The Court has since declined to enter that Judgment, on the grounds that the action already stood dismissed.” (Weninger decl., ¶ 5.)

“On August 26, 2026, I appeared before this Court at the Case Management Conference. When the Court inquired as to the status of the matter, I mistakenly stated that the action was settled by the acceptance of the 998 offer. The Court asked me if we would dismiss with or without prejudice. I was under the impression that the case was settled upon acceptance of the 998 and orally dismissed with prejudice. I made this statement inadvertently. I believed, incorrectly, that because the parties had already reached and documented a full settlement, the specific form of disposition entered by the Court did not matter. I did not intend, and had no reason, to forgo entry of judgment on Plaintiff’s behalf or to relinquish the Court’s jurisdiction to enforce the parties’ settlement.” (Weninger decl., ¶ 6.)

“As of the date of this Declaration, Defendants have not paid the settlement amount in full.” (Weninger decl., ¶ 7.)

“I discovered this error and immediately began taking steps to correct it, including preparing this Motion. This Motion is brought less than one month of the dismissal at issue.” (Weninger decl., ¶ 8.)

Marborg’s argument in opposition to the motion is, essentially, that plaintiff has not met her burden of showing an excusable, non-deliberative mistake, that a dismissal with prejudice is the accepted Code of Civil Procedure section 998 requirement, and that plaintiff suffers no prejudice by denial of the motion because the settlement is a binding enforceable contract.

Regardless of Marborg’s arguments, plaintiff counsel’s declaration of fault squarely requires relief under the statute. This would be so even if the mistake or neglect was inexcusable.

Relief will be granted. However, plaintiff’s request that the court enter judgment on the Code of Civil Procedure section 998 Offer to Compromise, pursuant to Code of Civil Procedure section 664.6, will be denied without prejudice. That request requires a separate noticed motion.