Judge: Jon R. Takasugi, Case: 22STCV11306, Date: 2024-10-07 Tentative Ruling

Case Number: 22STCV11306    Hearing Date: October 7, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s motion to set aside is GRANTED. The Court will set an OSC re: sanctions, in which Mr. Cho will be asked to explain why he should not be personally sanctioned for his conduct.

            On 4/4/2022, Plaintiff Pablo Rivero (Plaintiff) filed suit against Paul Rivero and Amaya Rivero alleging: (1) elder abuse; and (2) intentional infliction of emotional distress (IIED).

            On 9/12/2022, the Court dismissed the action, without prejudice, after Plaintiffs’ counsel failed to appear for an OSC Re: Entry of Default, failed to refile a Request for Entry of Default, and had failed to take any further action in the case. 

            On 12/7/2022, the Court granted Plaintiff’s motion to set aside dismissal.

            On 4/17/2024, the Court dismissed Plaintiff’s complaint, after there were no appearances at a scheduled OSC: re: dismissal for failure to prosecute.

Discussion 

            The Court’s order dismissing this action without prejudice was entered on 4/17/2024. Thus, this motion, filed on 7/29/2024, is timely.

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, Peter M. Cho, submitted a declaration admitting that the dismissal was the result of his inadvertent mistake: “The dismissal was the result of my mistake and fault. Specifically, I failed appear [sic] at said April 17, 2024 OSC due to the fact that I had not calendared the April 17, 2024 OSC inadvertently, and subsequently missed this court date.”

            The Court is deeply troubled by Mr. Cho’s conduct, as this is the second time this case has been dismissed for failure to prosecute based on Mr. Cho’s admitted error. While the mandatory relief provision creates an exception where an attorney is covering for a client, the provision provides no such exemption for repeated attorney error. As such, relief here is mandatory.

            However, CRC rule 2.30 provides the Court with the power to order sanctions, after written notice and an opportunity to be provided is heard. The Court schedules an OSC re: sanctions in which Mr. Cho will be asked to explain why he should not be personally sanctioned for his conduct.

            Based on the foregoing, Plaintiff’s motion to set aside is granted. The Court will set an OSC re: sanctions, in which Mr. Cho will be asked to explain why he should not be personally sanctioned for his conduct.

It is so ordered.

Dated:  October    , 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.  For more information, please contact the court clerk at (213) 633-0517.