Judge: Jon R. Takasugi, Case: 20STCV31251, Date: 2023-05-23 Tentative Ruling

Case Number: 20STCV31251    Hearing Date: May 23, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

DEFAULT JUDGMENT REVIEW

Plaintiff’s motion to set aside is GRANTED.

On 8/18/2020, Plaintiff Jeanette Bustos filed suits against H2 Fashion and Hung Tong, alleging: (1) discrimination; (2) retaliation; (3) failure to prevent discrimination and retaliation; (4) failure to provide reasonable accommodations; (5) failure to engage in a good faith interactive process; (6) declaratory judgment; (7) wrongful termination in violation of public policy; (8) failure to pay wages; (9) failure to pay minimum wages; (10) failure to pay overtime compensation; (11) failure to provide meal and rest periods; (12) failure to provide itemized wages statements; (13) waiting time penalties; (14) unfair competition; and (15) failure to permit inspection of personnel and payroll records.

On 8/29/2022, the Court entered an order of dismissal of Plaintiff’s action without prejudice after she failed to appear and re-filed virtually the same default judgment packet that was previously rejected.

Now, Plaintiff moves to set aside the entry of dismissal.

Discussion 

            On 2/22/2023, the Court denied Plaintiff’s motion without prejudice, after it became clear that the wrong parties had been served with the moving papers.

Now, having followed the Court’s recommendation to amend and serve the Motion appropriately and then refile, Plaintiff seeks to set aside the Court’s dismissal of her action on the grounds that counsel never received this Court’s orders setting a hearing on 8/25/2022 for failure to perfect the default package, and never received this Court’s Order of Dismissal dated 8/29/2022.

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, Plaintiff’s counsel submitted a declaration explaining that he neglected to file a Notice of Change of Address and as a result did not receive the Court’s notices of the 8/25/2022 OSC or the 8/29/2022 order of dismissal. (Ujkic Decl., ¶ 8.)

Given counsels’ declaration taking responsibility for the dismissal, relief is mandatory. (Abers, supra, 217 Cal.App.4th at p. 1210.)

            Based on the foregoing, Plaintiff’s motion to set aside is granted.

It is so ordered.

Dated:  May    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

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.