I. BACKGROUND  

On January 28, 2022, plaintiff Elsa Mejia (“Plaintiff”) filed this action against defendant Tony Fryklund (“Defendant”) for damages arising from a motor vehicle incident.   

On July 28, 2023, this matter was called for non-jury trial. After no appearances or contact by either party, Plaintiff’s complaint was dismissed without prejudice. (Min. Order, July 28, 2023.)   

On January 29, 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 neither the FSC or the trial date was calendared in his calendaring system, and therefore failed to appear. Counsel avers he was on vacation outside the United States on January 28, 2023, and that he did not arrange for any other attorney to appear on his behalf due to his unawareness of the trial date due to calendaring errors. Counsel avers he is a solo practitioner, and at the time the case was dismissed, he employed two legal assistants and a case manager. 

Counsel’s affidavit fails to explain why the FSC and trial date failed to make its way onto his calendar, when Counsel had employees to assist with case management. Nonetheless, despite the conclusory affidavit lacking explanation, Counsel’s affidavit of mistake regarding the calendaring error 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, the Court notes that 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 Proofs of Service for ________________.  Plaintiff’s 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 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 26th day of April 2024