I. Background  

On April 29, 2021, plaintiff Keith L. Morgan (“Plaintiff”) filed this action against defendants Independent Taxi Owners Associations and Hamidereza Eghbalpour (“Defendants”) for damages arising from an automobile collision.   

On October 27, 2022, this matter was called for non-jury trial, and after no appearances or contact by either party, the Court dismissed Plaintiff’s complaint without prejudice. (Min. Order, Oct. 27, 2022.)   

On April 24, 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.) 

Plaintiff’s counsel (“Counsel”) declares he is the only managing attorney, and that he was forced to close down the law office due to Covid-19. At that time, Counsel’s law office had only hard paper files. While transferring the paper files to digital files, Counsel’s assistant mistakenly marked Plaintiff’s file as settled/closed. As a result, Plaintiff has failed to serve defendants. Additionally, Counsel declares that most of his staff and employees had unexpectedly quit. Counsel asserts he takes full responsibility for his employee’s mistake, and that he will immediately serve defendants as soon as possible.  

Here, Counsel’s straightforward admission of fault is sufficient to set aside the dismissal. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 609- 10 [In order to qualify for mandatory relief, an affidavit from an attorney must be a straightforward admission of fault.].) Because Plaintiff timely filed this instant motion within six months of dismissal, the motion to set aside the dismissal is GRANTED and the action is reinstated.   

However, to date, no proof of service of the summons and complaint has been filed on Defendants. Therefore, the Court sets an Order to Show Cause re: Dismissal for Failure to File Proofs of Service for ________________.  Plaintiff’s counsel is required to appear at the OSC and provide evidence showing Defendants have been served with the summons and complaint or why such service has not occurred.  If Plaintiffs fail to appear at the OSC and file proper proof of service with sufficient time prior to the hearing, Plaintiffs risk the Court dismissing the action.    

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: