Memorandum Points and AuthoritiesCal. Super. - 6th Dist.March 3, 2021II Harriman Law OCOWNGO'I-waA NNNNNNMNNAAAAAAAAAA mflmmgwwéoomflmmgwwé 21 CV3791 22 Santa Clara - Civil V. Castaneda Electronically Filed Jonathan C. Harriman (SBN 250943) by Superior Court of CA, HARRIMAN LAw 1300 Clay Street, Suite 600 gfigflsfigggffi3'32“ Oakland, California 94612 Tel: (415) 625_3564 ReVieWGd By. V. castaneda Fax; (51 o) 988-5088 Case #21 CV3791 22 ionathan@harriman.law Envelope: 78691 35 Attorneys for Plaintiff Michael Dolcini SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR SANTA CLARA COUNTY MICHAEL DOLCINI Case No.: 21CV379122 Plaintiff, MEMORANDUM OF POINTS AND v. AUTHORITIES IN SUPPORT OF MOTION T0 SET ASIDE DISMISSAL DUC LE; LYFT, |NC.; AND DOES 1 - 30, [CCP § 473(b)] Defendants. Date: Time: Dept: 20 Complaint Filed: March 3, 2021 Trial Date: Not Set |. BACKGROUND This action arises from a March 4, 2019 incident wherein plaintiff Michael Dolcini sustained a head injury after defendant Duc Le slammed a door on his head. This action was filed by prior counsel Joseph Dang on March 3, 2021 - the day before the statute of limitations elapsed. Unfortunately, Mr. Dang failed to appear at the July 20, 2021 case management conference or the October 7, 2021 order to show cause hearing. Exhibit A, Declaration of Joseph Dang, 111] 6-7. Further, Mr. Dang failed to serve the summons and complaint. As a result, the court dismissed this action without prejudice on November 9, 2021. 1 MEMORANDUM IN SUPPORT OF MOTION TO SET ASIDE DISMISSAL II Harriman Law (DmVCDO‘l-booNA NMNNMNNMNAAAAAAAAAA OOVOUCJ‘l-th-‘hOOmNGO‘l-bOONAO Plaintiff Michael Dolcini learned of the dismissal in late November and immediately began looking for new counsel to correct this potentially fatal error. Mr. Dolcini retained this firm on December 3, 2021 and this motion is being filed as quickly as possible. We understand from prior counsel Joseph Dang that these delays were as a result of calendaring issues. Since being alerted to the dismissal, Mr. Dang has fully cooperated with our office to ensure that plaintiff is not prejudiced by his mistake. Mr. Dang executed the substation of attorney form on December 9, 2021 and it is being filed concurrently with this motion. Exhibit B, Substitution of Attorney. l|. AUTHORITIES AND DISCUSSION Code of Civil Procedure § 473(b) allows for a dismissal entered as a result of “mistake, inadvertence, surprise, or excusable neglect” to be vacated so long as the application is timely brought before a six-month deadline: 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken... No affidavit or declaration 0f merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry ofjudgment, 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 defaultjudgment, 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. (emphasis added). The present motion is timely under CCP § 473(b) because it is brought just one month after the dismissal was entered by this Court. This is well within the six-month timeframe set out under the code. /// 2 MEMORANDUM IN SUPPORT OF MOTION TO SET ASIDE DISMISSAL II Harriman Law LDmVCDO‘l-booNA NMNNMNNMNAAAAAAAAAA OOVOUU‘l-th-‘hommflmthDNAO If an attorney declaration of fault is submitted with a motion under this section then the code states that the court “shall” vacate the dismissal. Here, Mr. Dang has kindly submitted a declaration in support of this motion wherein he accepts full responsibility for the dismissal and explains that it was due to his mistake. Exhibit A, Declaration of Joseph Dang. In light of this declaration, plaintiff believes that the dismissal must be vacated. Ill. CONCLUSION CCP § 473(b) allows the court to vacate a dismissal entered within six months upon a showing of mistake, inadvertence, surprise, or excusable neglect. This matter was dismissed by the court one month ago as a result of mistakes made by prior counsel. A declaration of fault is provided by prior counsel, so the code requires that the dismissal be vacated. Thus, plaintiff Michael Dolcini respectfully requests that (1) the dismissal of this action entered on November 9, 2021 be vacated; (2) the action be reinstated and placed back onto the court’s case management calendar; and (3) plaintiff be granted 60 days to serve the summons and complaint on defendants. Dated: December 15, 2021 HARRIMAN LAW 3%» Jonathan C. Harriman Attorney for Plaintiff Michael Dolcini By: 3 MEMORANDUM IN SUPPORT OF MOTION TO SET ASIDE DISMISSAL