Judge: Lynne M. Hobbs, Case: 20STCV28142, Date: 2023-08-07 Tentative Ruling

Case Number: 20STCV28142    Hearing Date: August 7, 2023    Dept: 30

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PARVIN HERMANSSON vs 608 ALPINE LLC, et al.
20STCV28142
Motion to Vacate and Set Aside Dismissal, by Plaintiff

Ruling:  Plaintiff Parvin Hermansson's Motion to Vacate and Set Aside Dismissal is granted.  The Dismissal entered on May 16, 2023, is hereby vacated.  Moving party is to give notice.

Rationale:  

Pursuant to Code of Civil Procedure section 473 subdivision (b), both discretionary and mandatory relief is available to parties when a case is dismissed. Mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Ibid.) Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) 

On July 3, 2023, Plaintiff filed the instant Motion seeking to set aside dismissal due to miscommunication within Plaintiff’s counsel’s law firm, which resulted in no filing of an application for an order to serve DOE Defendants R&R Demo and ABS Shoring by publication (Mot. pp. 3-4.) Specifically, Makan “Michael” Khodabakhsh was the primary attorney and, during the course of Plaintiff’s representation, Steven Karp was assigned as co-counsel. (Khodabakhsh Decl. ¶ 6.) Due to miscommunication, Mr. Khodabakhsh and Mr. Karp both failed to timely and appropriately file declarations of due diligence regarding the two unserved DOE Defendants R&R Demo and ABS Shoring. (Id. ¶ 7.) Since the addresses for the two DOE Defendants listed in the Secretary of State business portal/website, yielded incorrect/bad addresses, the next step would have been to file an application for an order to serve by publication. (Id. ¶ 8.) Mr. Khodabakhsh and Mr. Karp each believed the other was responsible for handling the application for publication prior to the hearing. (Id. ¶ 9.) This mistake was solely the responsibility of the law firm and in no way attributed to any fault on the part of the Plaintiff regarding the dismissal of the two Doe Defendants. (Id. ¶ 10.) Because Plaintiff’s Motion is timely and accompanied with an attorney’s affidavit of mistake, the Motion is GRANTED.