I. BACKGROUND  

On January 5, 2022, plaintiff Legacy Global Private Security Inc (“Plaintiff”) filed this action against defendants Scott Brown, 360 Global Management, Urban Treez, and Does 1 to 25 for breach of contract, tortious interference with business relationship, common counts, and fraud.  Plaintiff filed an amendment to complaint naming Herbal Solutions, LLC as Doe 1.  

On February 9, 2024, this matter was called for an Order to Show Cause Re: Dismissal for Failure to File Proof of Service (360 Global Management) and Order to Show Cause Re: Entry of Default / Default Judgment. After no appearances or contact by either party, the Court dismissed Plaintiff’s complaint without prejudice. (Min. Order, Feb. 9, 2024.)   

On February 14, 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 his associate counsel Robert Rafii (“Rafii”) appeared at the last hearing prior to the dismissal, in which a continuance was sought on his behalf. The Court granted the continuance, and Rafii sent to Counsel the new  hearing date as part of a longer email on other matters. However, Counsel declares he inadvertently failed to enter the new date into the office calendar or on his paper and cell calendars. Counsel avers that defendants have been served. Counsel declares it was his miscalendering that resulted in the dismissal, and requests the Court vacate the dismissal. 

 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.].)  

III. CONCLUSION 

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, despite Counsel’s representation that defendants have been served, there is no proof of service of the summons and complaint filed on defendants 360 Global Management, Urban Treez, and Herbal Solutions, LLC (Doe 1) to date. On record, it appears that only defendant Scott Brown has been served.  

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 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.   

PLEASE TAKE NOTICE: 

Dated this 22nd day of March 2024