I. BACKGROUND  

On April 12, 2022, plaintiff Michelle Margaret Madrid (“Plaintiff”) filed this action against defendants Costco Wholesale Corporation and Joanna Diaz (“Defendants”) for damages arising a slip and fall on water on the floor.   

On October 10, 2023, this matter was called for non-jury trial, and after no appearances and no communication by or for any party, the Court dismissed Plaintiff’s complaint without prejudice pursuant to CCP § 581(b)(3). (Min. Order, Oct. 10, 2023.)   

On February 20, 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 that due to inadvertence or mistake, none of the dates for this action were calendared in the firm’s central litigation calendar. This mistake was unknown to Counsel until after Plaintiff’s action was dismissed. Counsel avers that at the time this action was filed, Michael Domingo, Esq. (“Domingo) was the managing attorney, and his employment ceased around November 2022. Domingo’s responsibilities included effectuating service of process, calendaring dates and deadlines, and appearing on Plaintiff’s behalf. Counsel believes that prior to Domingo’s departure, notices sent by the Court may have been delayed or misplaced, and that the failure to properly calendar resulted in Counsel’s unexplained absence on October 10, 2023.  

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.].) 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.   

As Counsel is aware, to date, no proof of service of the summons and complaint has been filed on Defendants. 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’s counsel 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 8th day of May 2024