I. BACKGROUND  

On June 9, 2021, plaintiffs Simon Sov, Emily Sov, Ying Tong Chao (collectively, “Plaintiff”) filed this action against defendants Quyen Van Hoang (“Defendant”) and Does 1 to 50 for damages from a motor vehicle collision.   

On December 7, 2022, this matter was called for non-jury trial, and after no appearances and no contact by either party, the Court dismissed Plaintiffs’ complaint without prejudice. (Min. Order, Dec. 7, 2022.)   

On June 6, 2023, Plaintiffs 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 that due to mistake, surprise, inadvertence, and/or excusable neglect, he has failed to effectuate process of service on Defendants and failed to attend the FSC and trial hearings due to personal and work-related issues. Counsel declares that he had family medical emergencies and extreme staff shortage due to the Covid-19 pandemic, which resulted in his failure to properly assign this file and appear at the scheduling hearings. Counsel avers he has been absent due to family medical issues.  

Here, although vague, 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, as Counsel is aware, no proof of service of the summons and complaint has been filed on Defendant to date. Pursuant to CCP § 583.210, the summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. Here, the Court notes that the complaint was filed on June 9, 2021, and that this action is fast approaching the three-year limitation.  

Therefore, the Court sets an Order to Show Cause re: Dismissal for Failure to File Proof of Service for ________________.  Plaintiffs’ 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’ counsel fails 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: 

Dated this 21st day of May 2024