Judge Gary Y. Tanaka, Case 22TRCV00068 2023-01-05 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Thursday, January 5, 2023

Department B Calendar No. 3

Plaintiffs filed the Complaint on February 1, 2022. Plaintiffs allege the following facts. Plaintiffs seek a judicial declaration regarding commercial property located at 24051 Neece Avenue, Ste. B, Torrance, CA 90505 stating that the property is unencumbered and that no monies are due. Defendant Gail Chelebian contends that she is entitled to fifty percent equity in the property plus an additional $55,000. Plaintiffs allege a sole cause of action for Declaratory Relief. The Complaint was dismissed on August 11, 2022, after Plaintiffs’ counsel’s failure to appear for the case management conference.

CCP § 473(b) states, in relevant part: “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. . . . Notwithstanding any other requirements of this section, the 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. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. . . .”

Plaintiffs move for an order granting relief from the entry of dismissal. The motion is brought pursuant to CCP § 473 et seq. on the ground that the dismissal was entered due to the mistake, inadvertence, surprise, and/or neglect of Plaintiffs’ counsel. Plaintiffs have set forth facts to support a showing that the dismissal was entered due to the mistake, inadvertence, surprise, and/or neglect of Plaintiffs’ counsel. Plaintiffs’ counsel failed to appear for the case management conference due to counsel’s calendaring mistake. (Decl., Farbod Faizal, ¶ 3.)

Defendant’s primary argument in opposition consists of stating that the matter should be deemed related and consolidated with an underlying family law action. Defendants are also upset that Plaintiffs’ counsel did not timely file a Notice of Related Cases. The Court notes that these arguments do not provide any grounds or authority that would support denying the motion. In addition, the Court notes that neither of the parties have followed the proper procedure outlined in Local Rule 3.3 to have the Supervising Judge of the district make the order deciding whether to deem the actions related. As to the actual motion in front of this Court, the motion must be granted pursuant to the mandatory provision of CCP § 473(b).

The dismissal is hereby set aside. Defendant requests that Plaintiffs’ counsel be sanctioned. However, Defendant provided no facts or evidence to support the amount incurred by Defendant due to the dismissal being entered. Thus, pursuant to CCP § 473(c)(1)(B), Plaintiffs’ counsel is directed to pay $500 to the State Bar Client Security Fund.