Judge Jon R. Takasugi, Case 19STCV16999 2022-09-06 Tentative Ruling

Plaintiffs’ motion to set aside dismissal is GRANTED. Plaintiffs are to file an updated default judgment packet within 10 days of entry of this order.

On 5/15/2019, Plaintiffs Lotus Company, LLC and Ariel Adams filed suit against Randy Kelly and Robert David p/k/a 24Hours, alleging: (1) breach of contract; (2) common count; and (3) intentional misrepresentation.

On 4/12/2022, the Court denied Plaintiff’s default judgment. Plaintiff was ordered to submit an updated and complete default judgment packet within 30 days of the 4/12/2022 ruling date.

On 6/3/2022, Plaintiff’s claim was dismissed after Plaintiffs failed to file an updated default judgment packet.

Plaintiffs seek relief from dismissal of their case. In support, Plaintiffs contend that the failure to file an updated default judgment packet was due to counsel’s mis-calendaring of the OSC hearing date and the filing date that the updated default packet was due.

The mandatory relief provision of Code of Civil Procedure section 473 subs. (b) provides, in part:

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..., or (2) resulting default judgment or dismissal entered....

Case law instructs that so long as counsel is willing to fall on their sword, relief is mandatory. (See Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1210 (Section 473's provision for mandatory relief from a dismissal based upon a declaration of attorney error does not require a determination the error was excusable. It applies even when the attorney has no excuse. Relief is mandatory when a complying affidavit is filed, even if the attorney's neglect was inexcusable.).) The only limitation is when the court finds [that] the default [or dismissal] was not in fact the attorney's fault, for example when the attorney is simply covering up for the client. (Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 991.)

Here, Plaintiffs’ counsel submitted a declaration explaining that it was his own error that led to dismissal of this action. (Duckett Decl, ¶ 7.) Moreover, Plaintiffs’ motion was filed within six months of the entry of default. (CCP section 473, subd. (b).) Thus, the motion is granted, pursuant to the mandatory provisions of Code of Civil Procedure section 473(b).

Plaintiffs are to file an updated default judgment packet within 10 days of entry of this order.

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

[1] While filed as a motion for reconsideration, the relief actually requested is relief from entry of dismissal. The Court characterizes it accordingly.