Department 30, Spring Street Courthouse

January 9, 2023

19STCV39199

Motion to Set Aside Dismissal filed by Plaintiff Yvonne Bodnar

The motion is granted.

The Court sets an OSC Re: Dismissal of the Complaint for Failure to File Proof of Service/Failure to Prosecute Unserved Defendants Triangle Beer Company (Doe 1) and Triangle Distributing Company (Doe 2) within the Three Year Statutory Period [CCP 583.210(a) and 583.250(a)(2)(A)] for February 17, 2023 at 8:30 a.m.

Moving party to provide notice.

This is an action for negligence arising from a slip and fall incident which took place in August 2018. Plaintiff Yvonne Bodnar filed her Complaint against Blvd 5, Inc. and AMPM, Inc. on October 31, 2019.

On October 13, 2020, Plaintiff filed Doe Amendments naming the Triangle Beer Company and Triangle Distributing Company as defendants in this action.

Defendants Triangle Beer Company and Triangle Distribution Company were dismissed on October 27, 2022 pursuant to Code Civ. Proc., section 583.410, 583.420(a)(1), and Cal. Rules of Court, Rule 3.110(b)(f). 

On November 17, 2022, Plaintiff filed the instant motion to set aside dismissal.

Moving Arguments 

Plaintiff moves to set aside dismissal of Defendants Triangle Beer Company and Triangle Distribution Company (“Triangle Defendants”) on the grounds that Plaintiff’s counsel inadvertently failed to calendar the October 27, 2022 hearing and the reminder to serve the Complaint on the dismissed Defendants.

Opposing Arguments

None filed.

 

Per Code of Civil Procedure, section 473, subdivision (b), a court may relieve a party or his counsel from a dismissal against him because of his “mistake, inadvertence, or excusable neglect.” The application must be made “no more than six months after entry of judgment, is in proper form, and is accompanied by a proposed answer or other pleading. (Id.) And when such relief is available, “there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-982, internal quotations omitted.)

Plaintiff seeks to set aside dismissal of Defendants Triangle Beer Company and Triangle Distribution Company pursuant to Code Civ. Proc., section 473(b). 

Plaintiff’s counsel explains that he and his office unintentionally failed to serve the Triangle Defendants because in December 2021, the firm was changing to a new cloud-based legal software and the reminder to send the Complaint out for service was not calendared due to a technical failure caused by the change. (Fradkin Decl., ¶¶8-9.) 

Because Plaintiff failed to serve the Triangle Defendants due to attorney neglect, the motion is granted. The Court sets aside dismissal.

Code of Civil Procedure section 583.210, subdivision (a), requires a summons and complaint to be served on the defendant within three years after the action is commenced. Failure to serve within three years requires that the action be dismissed, by the Court on its own motion or on the motion of any person interested in the action. (Code Civ. Proc., § 583.250, subd. (a)(2).) Unless expressly provided by statute, this requirement is mandatory and is not subject to extension, excuse, or exception. (Code Civ. Proc., § 583.250, subd. (b).) As to a defendant named in a complaint by fictitious name, the action commences on the date the complaint was filed. (Lopa v. Superior Court for Los Angeles County (App. 2 Dist. 1975) 120 Cal.Rptr. 445; Rios v. Torvald Klavness (App. 2 Dist. 1969) 83 Cal.Rptr. 150, 2 Cal.App.3d 1077.) 

Here, this action commenced on October 31, 2019. By the time the Court dismissed the Triangle Defendants on October 27, 2022, just under three years had passed since the action commenced. Absent a showing that other time may be excluded from the calculation of time, Plaintiff must serve the Triangle Defendants within four days of this order to avoid mandatory dismissal under Code of Civil Procedure section 583.210, subdivision (a).