I. BACKGROUND  

On September 26, 2022, plaintiff Jose Lara Caceres (“Plaintiff”) filed this action against defendants Maria Esperanza Soriano, Gladys Flores De Soriano, and Does 1 through 20 for damages arising from a motor vehicle collision. 

On March 25, 2024, this matter was called for non-jury trial. After no appearances or contact by either party, the Court dismissed Plaintiff’s complaint without prejudice. (Min. Order, March 25, 2024.) 

On April 5, 2024, Plaintiff filed a 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 office scheduled a telephonic appearance for the March 25, 2024 hearing, but that counsel was unable to access the hearing due to an issue with the pin number. Counsel avers he was unable to enter the hearing due to the failing pin number.  

Here, Counsel’s affidavit of mistake regarding a technological issue, which prevented him from appearing at the hearing, 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 there has been no proof of service of the summons and complaint filed on any named defendant to date. 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 6th day of June 2024