SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background  

On July 13, 2021, plaintiff Arman Mesri (“Plaintiff”) filed this action against defendants Ralph William Stephenson and Marionette Joy Murao for damages arising from an automobile collision.   

On July 13, 2023, this matter was called for an Order to Show Cause Re: Dismissal for Failure to File Proof of Service, and after no appearances or contact by Plaintiff, the Court dismissed Plaintiff’s complaint without prejudice. (Min. Order, July 13, 2023.)   

On January 12, 2024, 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 she has been unable to manage her personal and professional life, and that she was travelling with family internationally between June 17, 2023 to July 18, 2023. Counsel was scheduled to appear remotely for the July 13, 2023 OSC, but her flight from Tel Aviv to Athens for July 12, 2023 was cancelled and rescheduled to July 13, 2023. As a result, Counsel was unable to make an appearance and contracted another attorney, Fred Hanassab, Esq. (“Hanassab”) of the Law Offices of Fred Hanassab, to specially appear on her behalf. However, Hanassab woke up ill on July 13, 2023, and by the time he attempted to appear by Court Connect, the matter had already been called. Counsel avers it was the result of her neglect and mistake resulting in the dismissal.  

Here, the facts and 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 Proof 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: 

Dated this 14th day of February 2024