SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background Facts 

On July 31, 2020, Plaintiff Jonathan Lopez (“Plaintiff”) filed this action against Defendants Branden Miliani and Tayler Wallace (“Defendants”) for damages arising from a motor vehicle incident on August 1, 2018.   

August 2, 2022, this matter was called for an Order to Show Cause Re: Dismissal for Failure to File Proof of Service, and after no appearances by or for Plaintiff, the Court dismissed Plaintiff’s complaint without prejudice. (Min. Order, August 2, 2022.)   

On February 1, 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 court may dismiss an action for delay in prosecution if service is not made within two years after the action is commenced or if the case is not brought to trial within three years after the action is commenced.  (Code Civ. Proc., § 583.420, subd. (a).)  In Graham v. Beers (1994) 30 Cal.App.4th 1656, 1658, the court of appeal explained: 

 

An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney's mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently prosecute the action under section 583.410? No. We conclude that the mandatory language of section 473 does not apply to the discretionary dismissal statutes.  

 

After the trial court dismissed this action for failure to prosecute, it properly refused to vacate the judgment of dismissal in response to a motion brought pursuant to section 473. 

 

Therefore, a plaintiff may not obtain relief under the mandatory provisions of section 473(b) where, and as here, the action was dismissed for failure to prosecute. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 620.) However, relief is available through the discretionary provision of section 473(b).  The Court may vacate a dismissal pursuant to the discretionary provision of section 473(b) if there is a showing of excusable neglect and the motion is made within a reasonable time, not exceeding six months.    

Plaintiff appears to be making this motion pursuant to the mandatory relief provision of attorney fault. Here, the Court dismissed the action on August 2, 2022 because of Plaintiff’s failure to appear at the OSC after Plaintiff previously failed to appear at the OSC on March 29, 2022.  To date, there is no showing of progress regarding service.  Accordingly, Plaintiff’s reliance on the mandatory provision of section 473(b) is unavailing.    

It is unclear whether Plaintiff is also making this motion pursuant to the discretionary relief provision of CCP §437(b), which allows the Court the discretion to vacate a dismissal under section 473(b) if the attorney shows the neglect at issue was “excusable” and makes the motion within “a reasonable time,” not exceeding six months. However, considering the broad remedial provision of CCP §437 that it should be liberally applied to carry out the policy in favor of trial on the merits, the Court will consider grounds for discretionary relief. A showing of diligence is required when seeking discretionary relief.  For example, according to Pacific Grove v. Hamilton (1950) 100 Cal. App. 2d 508, 511, an unexplained delay of five and one-half months to file the motion to vacate was deemed fatal to the application.   

Here, Plaintiff’s counsel waited one day before the expiration of the 6-month period to file this motion.  Plaintiff’s counsel avers that he personally served Defendants on January 28, 2022. Plaintiff’s counsel serving the summons and complaint is acceptable, as Plaintiff's attorney is not “party to action” and is competent to serve summons. (Sheehan v. All Persons (1926) 80 Cal.App. 393.) However, if true, the Court cannot fathom why Plaintiff’s counsel has yet to file the proofs of service evidencing as such if Defendants were served seven months ago. Plaintiff’s counsel’s declaring that he “hesitated to file the proof of service because I needed to serve the defendants with Statements of Damages to insure that a default would be successful” is not reasonable. (Mot. Decl. Augustine, ¶ 3.) However, Plaintiff’s counsel avers that at the time leading up to the hearing, Plaintiff’s counsel was a solo practitioner and overwhelmed with stress due to the pandemic, family pregnancy, and sickness. Furthermore, Plaintiff’s counsel avers that he made a mistake in his first jury trial on August 2, 2022 and lost the trial, which caused serious depression and delayed Plaintiff’s counsel in filing this motion.  

Because Plaintiff’s counsel explained the delay of nearly six months to file the motion to vacate and provides an explanation for Plaintiff’s counsel’s neglect and lack of diligence, Plaintiff’s motion to set aside the dismissal is granted pursuant to the discretionary provision of CCP § 473. Furthermore, Plaintiff’s counsel must expeditiously file the purported proofs of service.