Judge: Kevin C. Brazile, Case: 19STCV30580, Date: 2023-03-09 Tentative Ruling




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Case Number: 19STCV30580    Hearing Date: March 9, 2023    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20

Hearing Date: Thursday,March 9, 2023

Case Name: Middleton v. Lee, et al.

Case No.: 19STCV30580

Motion: Motion to Set Aside Dismissal of Second Amended Complaint

Moving Party: Plaintiff John P. Middleton

Responding Party: Defendants RL Films2 Inc., and Roy Lee

Notice: OK

Ruling: The Motion to Set Aside/Vacate Dismissal of the Second Amended Complaint is GRANTED subject to the condition that Plaintiff compensate Defendant for the fees associated with Plaintiff’s prior failure to prosecute. 

Plaintiff to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.


On August 28, 2019, Plaintiffs John Middleton and The John Powers Middleton Companies, LLC (together “Middleton”) filed a Complaint against Defendants Roy Lee and RL Films2, Inc. (together “Lee”). 

On May 11, 2020, Middleton filed a Second Amended Complaint asserting causes of action for fraud by intentional misrepresentation, promissory estoppel, breach of contract, unfair competition, unjust enrichment and accounting.  

On January 17, 2023, the Court granted Lee’s motion to dismiss the Second Amended Complaint due to delay of prosecution under Code of Civil Procedure § 583.410. The Court granted the motion after Middleton filed no opposition. 

On February 14, 2023, Middleton filed a Motion to Set Aside Dismissal of Second Amended Complaint pursuant to Code of Civil Procedure section 437(b) on the grounds that the dismissal was entered through Middleton’s mistake, inadvertence, surprise, and/or excusable neglect. 


Applicable Law

Pursuant to Code of Civil Procedure section 473(b), the court is empowered to relieve a party “upon any terms as may be just…from a judgment, dismissal, order or any other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Relief is discretionary if the declarations are based on “mistake, inadvertence, surprise, or excusable neglect.” Motions must be brought within six months of the entry of judgment. (Code Civ. Proc. § 473(b).)  

Application to Facts

Middleton argues that the dismissal should be set aside/vacated because Middleton’s counsel, Lavely & Singer, withdrew from representation in August 2022. (Middleton Decl. ¶¶ 3-4.) Middleton states that although the withdrawal was due to his failure to pay fees, it was not due to Middleton’s decision to abandon the case, but rather because Middleton lacked the financial ability to pay the firm. (Middleton Decl. ¶ 3-4.) In 2020, a new trustee was appointed to Middleton’s Trust, and the trustee took the position that legal fees were not to be funded from the trust, and caused Middleton to have difficulty paying attorneys. (Middleton Decl. ¶ 5.) Thus, Middleton argues that he was forced to proceed without representation. (Middleton Decl. ¶ 6.) 

After Lavely & Singer withdrew, Middleton states that he immediately began to look for other representation, but was not able to find one because of the large retainer requested. (Middleton Decl. ¶ 7.) Lee filed various discovery motions and the Motion to Dismiss while Middleton was without counsel, and Middleton states that he did not fully understand the nature and severity of the consequences associated with failing to respond to these matters after counsel withdrew. (Middleton Decl. ¶ 8.) Middleton succeeded in retaining new counsel three days after the Motion for Dismissal was granted. 

In opposition, Lee argues that Middleton decided to abandon the case due to changed financial circumstances. However, Middleton puts forward a sufficient declaration stating that he could not continue paying the lawyers and immediately began seeking other counsel. 

A party’s mistake in judgment in electing to proceed in propria persona does not constitute excusable neglect. (Burnete v. La Casa Dana Apts. (2007) 148 CA4th 1262, 1264.) However, this is not a case where Middleton “elected” to proceed in propia persona; rather, his counsel withdrew from representing him. 

Lee also contends that in the notice to dismiss served to Middleton, understanding that Middleton was unrepresented, Lee went to great lengths to ensure that Middleton was aware of the repercussions of failing to respond by attaching conspicuous language to the document. Lee argues that Middleton’s failure to appreciate the consequences of ignoring the notice to dismiss does not constitute excusable neglect or a reasonable or justifiable mistake of law.

Lee likens this case to Jackson v. Bank of America, where the Court of Appeals found that the trial courts grant of relief from default constituted abuse of discretion because there was nothing in the foregoing facts to justify the grant of relief in this case.” (Opposition,  5:10-15, citing Jackson v. Bank of America, 141 Cal.App.3d 55, 58 (1983)); (Opposition, 15:13-14 to 16:1-9.) In Jackson, the defendant wrongly declined to answer based on a mistaken assumption that the complaint was moot because it had already sold the financial instruments that were the subject of the litigation. Jackson, 141 Cal.App.3d 55 at 58. Here, if Middleton’s failure to understand or acknowledge the legal impact of not responding to Lee’s notice of dismissal were the sole grounds on which Middleton were moving for set aside, Middleton would not be able to show excusable neglect. However, Middleton shows other grounds for excusable neglect. 

The Court finds that, based on the facts, there was excusable neglect. Middleton’s counsel withdrew in August 2, 2022. The relevant discovery motions that Middleton failed to respond to were filed October 14, 2022. Lee’s Motion to Dismiss was filed December 2, 2022 and granted on January 17, 2023. Middleton filed a motion to substitute new counsel on February 8, 2023. Middleton filed this motion to set aside on February 14, 2023, well within the six month time limit. The Court finds that the facts show that Middleton acted with reasonable diligence to find new counsel after having financial difficulties in funding prior counsel. Middleton found new counsel within six months and filed this motion less than one month after the complaint was dismissed. 

The Court finds that the neglect was excusable. 

Request for Attorney’s Fees in Connection with Middleton’s Disappearance

Lee argues that, if the Court were to find that there was excusable neglect, as it does, that set aside of the dismissal of the second amended complaint be conditioned on Middleton compensating Lee for the fees associated with Middleton’s prior failure to prosecute.  Lee’s request is based on CCP § 473(b), which authorizes the Court to condition any relief under Section 473 upon any terms as may be just.” Specifically, Lee claims $26,204.50 in fees due to Middleton’s disappearance in August 2022. (Lee Decl. ¶ 27.) 

Lee’s lead counsel is Christopher Lee of Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. Ekwan Rhow of the same firm is co-counsel. Mr. Lee estimates he spent 51.9 hours attempting to re-establish contact with Mr. Middleton, in filing the Motion to Compel deposition of Alex Anderson, in filing the Motion to Dismiss, and responding to Cross-Defendantsex parte application to continue trial. (Lee Decl. ¶ 26.) Mr. Lee estimates that Mr. Rhow spent a total of 5.8 hours on the same tasks. (Lee Decl. ¶ 26.) Mr. Lee’s rate for this case was $425 and Mr. Rhow, who has 29 years of experience in complex litigation, had a rate of $715. (Lee Decl. ¶¶ 24 and 25.) 

The Court finds that Lee is entitled to some amount of attorneys’ fees in connection with filing the motion to dismiss for Middleton’s failure to prosecute. However, Lee’s counsel does not attach exact hours or billing records to prove the amount requested. (Lee Decl. ¶ 27: Mr. Lee states “Should the Court so Order, I am able to update this declaration with an exact account of hours, with billing records attached”.) Therefore, Lee’s counsel must provide such proof of the requested fees specifically pertaining to the motion to dismiss Middleton for failure to prosecute. 

Request for Judicial Notice

The Court grants Middleton’s request for judicial notice. 

Evidentiary Objections

Middleton’s evidentiary objections are overruled. 



The Motion to Set Aside Dismissal of the Second Amended Complaint is GRANTED on condition that Middleton compensate Lee for fees expended in dismissing Middleton for failure to prosecute. Lee is ordered to provide specific, detailed billing records for the fees requested.

Middleton is to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.