SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background Facts 

On September 23, 2021, Plaintiffs Lito Reotutar and Rubirosa Reotutar (“Plaintiffs”) filed this action against Defendant Caitlin M. Bishop (“Defendant”) for damages arising from a motor vehicle incident.   

On March 23, 2023, this matter was called for a non-jury trial, and after no appearances or contact by either party, the Court dismissed Plaintiffs’ complaint without prejudice. (Min. Order, March 23, 2023.)   

On September 20, 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.) 

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.)    

Plaintiffs’ counsel (“Counsel”) declares he failed to calendar the hearing on the matter, because over the past few years, he had lost his office, staff, his health, the death of his brother (who is a local attorney and Counsel had to take over his practice), and other family problems. Counsel further declares that he moved his mailing address and did not receive a copy of any dismissal. 

In terms of Counsel’s declaration, the Court notes that the complaint was filed in 2021, not in the year 2023 as averred. Further, the burden is on Counsel to update the Court regarding any change of address. Nonetheless, 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 Plaintiffs 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 Defendant. 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 Defendant has 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.   

 

 

Dated this 29th day of January 2024