I. BACKGROUND  

On April 4, 2022, plaintiff Michael Brox (“Plaintiff”) filed this action against defendants Juan Gabriel Mejivar Miranda, Hoovestol Inc., and Does 1 through 20 for damages arising from a motor vehicle collision.   

On October 2, 2023, this matter was called for non-jury trial. After no appearance or contact by either party, Plaintiff’s complaint was dismissed without prejudice. (Min. Order, Oct. 2, 2023.) 

On February 15, 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 the previous handling attorney, Alexander Polyachenko (“Polyachenko”), passed away in September 2022. Polyachenko handled most of his litigation files with the assistance of associate attorney Vanessa Garcia (“Garcia”). However, at the time of Polyachenko’s passing, Garcia left the firm to open her own office. Counsel declares he has attempted to diligently organize a large amount of litigation files left after Polyachenko’s passing, and that he was unaware of any calendared appearances in this action. Counsel avers that the sudden death of his law partner and absence of the original assisting attorney resulted in the office’s failure to calendar the hearing date, and that the non-appearance would have otherwise not occurred if not for these events.  

Here, Counsel’s affidavit of mistake due to the passing of the initial handling attorney 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 no proof of service of the summons and complaint has been filed on any named defendant to date. This action is now two years old. The Court therefore 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 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 10th day of May 2024