2009-00035113-CU-PA

Cathy Acosta vs. Linda M. Little

Nature of Proceeding: Motion to Vacate Judgment

Filed By: Miller Jr., Russell W.

Plaintiff Cathy Acosta’s Motion to Vacate Judgment to CCP §473(b) is ruled upon as
follows.

On August 13, 2013, the Court granted Defendants Linda M. Little and Jonathan T.
Little’s Motion to Dismiss for Failure to Serve Summons and Complaint within Three
Years. Plaintiff failed to oppose Defendants’ motion. This was conceded by plaintiff’s
counsel at the hearing on the motion to dismiss.

Plaintiff now moves to set aside the judgment of dismissal on the grounds that the
mistake, inadvertence, surprise, or neglect of her counsel resulted in the dismissal.
(CCP §473(b).) Plaintiff presents the declaration of her attorney, Russell W. Miller, who
states that he did not immediately serve the summons and complaint on Defendants
“in the spirit of ongoing attempts to reach a negotiated settlement” with the parties’
insurance company. (Russell Decl. ¶9.) Counsel states that he had difficulty obtaining
medical records from Plaintiff’s medical provider. (Russell Decl. ¶14.) Counsel also
states that in June of 2011, his email accounts and calendaring system were hacked
and completely destroyed. (Russell Decl. ¶15.) Counsel states that although he
eventually retrieved and repaired the calendaring data and transferred it to a more
secure system, the service date for the Summons and Complaint in this action was
inadvertently calendared for February 12, 2014. (Russell Decl. ¶18.) Counsel states
that he failed to file an opposition to Defendant’s motion to dismiss because of his
“singular focus” on a jury trial in another case. (Russell Decl. ¶20)

In opposition, Defendants argue that the declaration of Plaintiff’s counsel is insufficient
because it fails to show that counsel’s neglect was “reasonable”.

However, the requirement that the neglect be shown to be excusable does not apply
where the motion is based on a declaration of attorney fault, in which instance an order
setting aside the dismissal is mandatory. (CCP §473(b) (“[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…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.).)

Here, Plaintiff presents the declaration of her counsel, which indicates that the failure
to timely serve the summons and complaint was the result of counsel’s calendaring
error, and that he failed to oppose the motion to dismiss because his attention was
focused on another case. This is sufficient to meet the requirements for mandatory
relief from dismissal under CCP §473(b).

The motion to vacate the judgment is granted.

The prevailing party shall prepare a formal order for the Court’s signature