SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background Facts 

On September 20, 2021, Plaintiff Razmik Gharapety (“Plaintiff”) filed this action against Defendant Los Angeles Metropolitan Transportation Authority (“Defendant”) for damages arising from a motor vehicle incident.   

On March 20, 2023, this matter was called for a non-jury trial, and after no appearances or contact by either party, the Court dismissed Plaintiff’s complaint without prejudice. (Min. Order, March 20, 2023.)   

On April 4, 2023, Plaintiff filed the instant motion to set aside the dismissal. On January 16, 2024, Defendant filed an opposition to Plaintiff’s motion to set aside. 

 

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.)    

Plaintiff’s counsel (“Counsel”) declares his office received notice of the Final Status Conference for May 6, 2023 and Trial date for May 20, 2023, but that his office inadvertently calendared both dates in the year 2024 instead of 2023. Consequently, Counsel failed to appear at both the FSC and Trial. Counsel avers that the calendaring mistake was the sole responsibility of Counsel and his staff, and that it is not attributable to Plaintiff or an unwillingness to prosecute the matter.  

In opposition, Defendant argues that it was never served with the summons and complaint, nor has there been any proof of service filed with the Court. Defendant contends it was first made aware of this action during the time Plaintiff was attempting to vacate the dismissal. Defendant avers Plaintiff has failed to prosecute and has not established excusable mistake or neglect. 

Generally, excusable neglect and a basis for relief has been found where an attorney relies on an employee or calendaring system to calendar deadlines, and the employee or system fails. (Renteria v. Juvenile Justice, Dept. of Corrections & Rehabilitation (2006) 135 Cal. App. 4th 903, 911.) However, even if the mistake or neglect is not excusable in arguendo, under the mandatory relief provision, the attorney affidavit of fault need not establish that the conduct was excusable. (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.]; Solv-All v. Sup. Ct. (2005) 131 Cal.App.4th 1003, 1012 [Where counsel seek relief alternatively under both the excusable and attorney-fault provisions of Code of Civil Procedure Section 473, and confirms that any act or omission leading to the entry of the default was done without the client's knowing participation, relief is mandatory.].) Because Plaintiff timely filed this instant motion within six months of dismissal, and provides that dismissal was the result of Counsel’s fault for miscalendering the year, 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 Defendant. Therefore, the Court sets an Order to Show Cause re: Dismissal for Failure to File Proof of Service for ________________.  Plaintiff is required to appear at the OSC and provide evidence showing Defendant has been served with the summons and complaint or why such service has not occurred.  If Plaintiff fails to appear at the OSC and file proper proof of service with sufficient time prior to the hearing, Plaintiff risks the court dismissing the action.   

 

Moving party is ordered to give notice.