Judge: John J. Kralik, Case: 21BBCV00773, Date: 2022-09-02 Tentative Ruling

Case Number: 21BBCV00773    Hearing Date: September 2, 2022    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Be Well Nursing (“Plaintiff”) alleges that it entered into a written contract with Defendant Pacifica Hospital of the Valley (“Defendant”) on April 2, 2021.  Plaintiff alleges that Defendant breached the agreement on April 17, 2021 by not performing its contractual obligations and failing to pay its invoices. Plaintiff alleges that after being notified of the breach and failure to perform on April 22, 2021, Plaintiff was owed $255,428 in payments for staffing Defendant’s hospital and facilities.

            The complaint, filed August 30, 2021, alleges causes of action for: (1) breach of contract; (2) money had and received; (3) goods and services rendered; and (4) unjust enrichment.

On October 15, 2021, the default of Defendant was entered. 

B.     Relevant Background and Motion on Calendar

On March 24, 2022, the Court held an OSC re Default Judgment; OSC re $250 in Sanctions against Plaintiff’s Counsel for his failure to appear on January 24, 2022; and an OSC re: Dismissal to comply with delay reduction rules.  The Court noted that no corrected default judgment package had been submitted, ordered sanctions against Plaintiff’s counsel in the amount of $250, and ordered Plaintiff’s complaint to be dismissed without prejudice. 

On July 22, 2022, Plaintiff filed a motion to set aside the dismissal and waive sanctions against Jilbert Tahmazian.  The Court is not in receipt of an opposition brief.

DISCUSSION

            Plaintiff moves to set aside the dismissal entered on March 15, 2022, pursuant to CCP § 473(b).  In support of the motion, Plaintiff provides the declaration of its counsel, Jilbert Tahmazian.

Mr. Tahmazian states that he failed to appear to the January 24, 2022 hearing due to an inadvertent mistake and excusable neglect on his newly hired secretary’s behalf, who was tasked with calendaring notices from the Court but whose training had not been completed.  (Tahmazian Decl., ¶¶3-6.)  He also states that he was involved in his wife’s care and recovery following various surgeries.  (Id., ¶¶12-14.)  He states that at the start of 2022, his wife began having complications after surgeries since her (unspecified) diagnosis in 2020.  (Id., ¶7.)  He states that his wife had 2 surgeries in 2020, 2 reconstructive surgeries at the end of 2021, and a fifth surgery on January 10, 2022, and that he was able to return to his office on January 20, 2022.  (Id., ¶¶8-11.)  He states that he inadvertently failed to appear on March 24, 2022 due to complications with his wife and his office’s efforts to settle the matter.  (Id., ¶20.)  He also states that following the fifth surgery, he took care of his wife and had to take her to the hospital for surgery and appointments.  (Id., ¶¶15-19.)  Mr. Tahmazian states that the OSC notice was either misplaced, lost, or did not reach his office because it was not in their physical file.  (Id., ¶¶21-22.)  He states that his failure to appear at the January 24, 2022 and March 24, 2022 OSC hearings was due to excusable neglect, inadvertence, and mistake, as well as due to the inadvertent error of his secretary.  (Id., ¶¶23-24.) 

            Based on the declaration of Mr. Tahmazian, the Court finds there is substantive merit to the motion.  Further, the motion was timely brought within 6 months of the dismissal and the imposition of sanctions.  Lastly, the motion is unopposed.  Thus, the motion to vacate the dismissal and set aside the sanctions of $250 imposed against counsel is granted.   

CONCLUSION AND ORDER  

Plaintiff Be Well Nursing’s motion to set aside the dismissal entered on March 24, 2022 and set aside the sanctions imposed against counsel Jilbert Tahmazian is granted. 

The Court sets an Order to Show Cause re Default Judgment for December 7, 2022 at 8:30 a.m.  Prior to the OSC hearing date, Plaintiff should submit a revised default judgment package for the Court’s review.

Plaintiff shall provide notice of this order.