SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background Facts 

On September 19, 2019, Plaintiff Che Johnson (“Plaintiff”) filed this action against Defendants Scorpion Management, LLC, et al. for damages arising from allegations of assault and battery at a bar.    

On October 30, 2023, this matter was called for an Order to Show Cause Re: Dismissal for Failure to Name Does 21-25, and after no appearance or contact by Plaintiff, the Court dismissed Plaintiff’s complaint without prejudice. (Min. Order, Oct. 30, 2023.) 

On November 8, 2023, Plaintiff filed the instant motion to set aside the dismissal.¿¿¿ 

 

II. Motion to Set Aside  

Code Civ. Proc. (“CCP”) § 473 provides for both discretionary and mandatory relief under certain circumstances. “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.” (CCP § 473, subd. (b).) Application for this relief shall be made within a reasonable time, in no case exceeding six months, after judgment, dismissal, order, or proceeding was taken. (Ibid.)  “[T]he 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.”  (Ibid.) 

A mistake is a basis for relief under CCP § 473 when by reason of the mistake a party failed to make a timely response. Surprise occurs when a party is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the party has shown some reasonable excuse for the default.  (Credit Managers Association of California v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.)  Under CCP § 473, the moving party bears the burden of demonstrating an excusable ground, such as fraud or mistake, justifying a court’s vacating a judgment.  (Basinger v. Roger & Wells (1990) 220 Cal.App.3d 16, 23-24.)    

In order to qualify for mandatory relief, an affidavit from an attorney must be a straightforward admission of fault. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 609- 10.) Here, Plaintiffs’ counsel (“Counsel”) declares that he mistakenly believed the Order to Show Cause Re: Dismissal for Failure to Name Does 21-25 would be taken off-calendar because Plaintiff had filed amendments to complaint naming Does 21-25 on September 5, 2023. Counsel avers Does 21 and 24 were both personally served on October 14, 2023.  

Because Plaintiffs timely filed this instant motion within six months of dismissal, and establishes dismissal was the result of Counsel’s mistake for failure to appear due to the belief that the Order to Show Cause Re: Dismissal for Failure to Name Does 21-25 would be taken off-calendar, the motion to set aside the dismissal is GRANTED and the action is reinstated.