Judge: Joel L. Lofton, Case: 23AHCV00240, Date: 2023-12-07 Tentative Ruling

Case Number: 23AHCV00240    Hearing Date: December 7, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     December 7, 2023                                           TRIAL DATE: No date set.

CASE:                         JIANG XU, an individual; HUI CAO, an individual, v. GARAGE KITCHEN, INC., a California corporation; XIUQING, an individual; and DOES 1-100, inclusive.

CASE NO.:                 23AHCV00240

MOTION TO SET ASIDE DISMISSAL

MOVING PARTY:               Plaintiffs Jiang Xu and Hui Cao

RESPONDING PARTY:      No response filed.

SERVICE:                              Filed November 3, 2023

RELIEF REQUESTED

             Plaintiffs move to set aside dismissal entered against them on September 20, 2023.

BACKGROUND

             This case arises out of Plaintiffs Jiang Xu and Hui Cao wage and hour claims against Defendants Garage Kitchen, Inc. and Xiuqing Huang. Plaintiffs filed this complaint on February 2, 2023.

TENTATIVE RULING

            Plaintiffs’ motion for an order setting aside dismissal is GRANTED.

DISCUSSION

            Plaintiffs move for an order setting aside dismissal. On September 20, 2023, there were no appearance for Plaintiffs at an Order to Show Cause hearing, and Plaintiffs’ complaint was ordered dismissed. Plaintiffs’ make this motion on the basis that their failure to appear was caused by the mistake of counsel.

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) “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.” (Code Civ. Proc. section 473, subd. (b).)

Plaintiffs provide that the attorney previously assigned to this case, Ronald Norman, had left the firm around mid-September and had missed deadlines in other matters. (Braugh Decl. ¶ 8.) Plaintiffs provide that the failure to appear was based on error of counsel and should be subject to mandatory relief. However, Code of Civil Procedure section 473 provides for relief where the motion “is accompanied by an attorney’s sworn affidavit attesting to his or her mistake”. Here the declaration attests to another counsel’s mistake. Nonetheless, the court finds that the dismal was entered against Plaintiffs based on mistake, inadvertence, surprise, or excusable neglect because of Plaintiffs’ previous counsel’s failure to appear in this matter.

CONCLUSION

            Plaintiffs’ motion for an order setting aside dismissal is GRANTED.

            Plaintiff is ordered to pay sanctions in the amount of $500 within 30 days pursuant to Section 473(c)(1)(A)

Dated:   December 7, 2023                                         ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court