Judge: Armen Tamzarian, Case: 22STCV39961, Date: 2025-02-26 Tentative Ruling

Case Number: 22STCV39961    Hearing Date: February 26, 2025    Dept: 52

Plaintiff Abraham Kim’s Motion for Relief from Dismissal

Plaintiff Abraham Kim moves for relief from dismissal under Code of Civil Procedure 473, subdivision (b).  That statute provides, “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.”

Plaintiff does not show that the dismissal was taken against him due to his mistake, inadvertence, surprise, or excusable neglect.  Plaintiff’s motion includes no sworn declaration or other admissible evidence.  “In law and motion practice, factual evidence is supplied to the court by way of declarations.”  (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)  “[M]atters set forth in memoranda of points and authorities are not evidence.”  (Brehm Communities v. Superior Court (2001) 88 Cal.App.4th 730, 735, internal quotations and alterations omitted.) 

Plaintiff’s motion has only a memorandum of points and authorities arguing that plaintiff mistakenly failed to attend the hearing on January 28, 2025.  But any mistake in not attending the hearing did not cause the dismissal.  On that date, the court dismissed the action under Code of Civil Procedure 583.420, which provides that the court may dismiss an action for delay in prosecution if “[s]ervice is not made within two years after the action is commenced against the defendant.”  (Id., subd. (a)(1).)  Plaintiff commenced this action on December 23, 2022.  Plaintiff has never filed a proof of service of summons on any defendant.  Plaintiff has not shown he tried to serve any defendant.  Plaintiff’s papers do not address this issue.  Simply attending the hearing on January 28, 2025, could not have solved the problem that led to dismissal. 

Plaintiff has consistently done nothing to move this action forward.  The record shows that, since plaintiff filed the complaint in December 2022, he has done only two things in this action.  First, he attended the initial case management conference on April 24, 2023.  Second, in February 2025, he filed this motion along with a paper titled “continuation of first amended complaint and causes of action.”  In the meantime, plaintiff failed to appear at four hearings on June 9, 2023, September 7, 2023, February 29, 2024, and January 28, 2025.  Plaintiff never took the crucial step of serving the summons and complaint on any defendant.  

Plaintiff Abraham Kim’s motion for relief from dismissal is denied.