Judge Holly J. Fujie, Case Number: 22STCP35799, Date: 2025-04-16 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

The Court has considered the moving papers. No opposition has been filed. Any opposition was required to have been filed by April 3, 2025. (Code of Civil Procedure (“CCP”), § 1005, subd. (b) [opposition must be filed at least nine court days prior to the hearing].)

This is a harassment and wrongful termination action. Plaintiff sues defendants AKM Oil Co., Inc, Paola Doe and Does 1 through 20 pursuant to a November 10, 2022 complaint (the “Complaint”) alleging causes of action for: (1) harassment in violation of Government Code (“Gov. Code”) §§ 12940 et seq.; (2) retaliation in violation of Gov. Code §§ 12940 et seq; (3) failure to prevent harassment and/or retaliation in violation of Gov. Code §12940(k); (4) retaliation [Labor Code §§ 1102.5, 1102.6]; (5) failure to provide meal and rest periods [Labor Code §§ 226.7, 512]; (6) waiting time penalties [Labor Code §§ 201-203]; (7) unfair competition (Business & Professions Code §17200 et seq.]; (8) Private Attorney General Act [Labor Code § 2699,et seq]; and (9) wrongful termination in violation of public policy.

On February 5, 2025, Plaintiff filed the instant motion to set aside dismissal (the “Motion”). The Motion is unopposed.

“A motion for relief under section 473 is addressed to the sound discretion of the trial court and an appellate court will not interfere unless there is a clear showing of an abuse. [Citation.] The statute is remedial and should be liberally applied to carry out the policy of permitting trial on the merits, but the moving party has the burden of showing good cause. [Citations.]” (David v. Thayer (1980) 133 Cal.App.3d 892, 904-905.)

Under CCP section 473, subdivision (b), a court must vacate any resulting default judgment or dismissal entered against an attorney’s client whenever an application for relief is made no more than six months after entering of judgment, is in proper form, and is accompanied by the attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, unless the court finds that the fault or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. (CCP § 473, subd. (b).) The affidavit need only attest to the attorney’s mistake, inadvertence, surprise, or neglect in causing the default or default judgment—the reasons for it need not be explained. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 439.) Attestation that one of these reasons existed is sufficient to obtain relief unless the trial court finds that the dismissal did not occur because of these reasons. (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660.) This is because “the purpose of the mandatory relief provision under section 473, subdivision (b) is achieved by focusing on who is to blame, not why.” (Martin Potts, supra, 244 Cal.App.4th at p. 439.)

For example, California courts have determined that an attorney’s conscious decision not to answer a complaint on behalf of his or her client is grounds for mandatory relief under this statutory subdivision. (Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1010.) The lawyer’s negligence need not be the exclusive or sole cause of the client’s loss so long as it was in fact a proximate cause. (Milton v. Perceptual Develop. Corp. (1997) 53 Cal.App.4th 861, 867.) However, mandatory relief under section 473, subdivision (b) may be denied where dismissal [or default] resulted from intentional conduct rather than a mistake, inadvertence, surprise, or neglect. (See Pagarigan v. Aetna U.S. Healthcare of Cal., Inc. (2007) 158 Cal.App.4th 38, 45-46.)

Plaintiff brings this Motion on grounds that this action was dismissed due to Plaintiff’s counsel’s mistake and neglect. This position is supported by the declaration of Liliuokalani H. Martin (“Martin Decl.”). Plaintiff’s counsel states that she did not receive the Court’s minute order ordering Plaintiff to file a declaration by January 23, 2025, stating why the case should not be dismissed or the Court’s January 27, 2025 order dismissing the case because the orders were served to counsel’s old office address. (Martin Decl., ¶ 5.) The Court notes that since the time that the order was served, Plaintiff’s counsel filed a Notice of Change of Address form with the Court.

The Court finds that the dismissal of this action was the result of Plaintiffs’ counsel’s mistake, inadvertence or excusable neglect. In addition, the Motion was timely filed within six months of the dismissal and is accompanied by counsel’s sworn affidavit attesting to her mistake. (CCP, § 473, subd. (b).)

Thus, Plaintiff’s Motion is GRANTED. The Court orders that the dismissal be vacated and that the Complaint be reinstated.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court