Judge: Latrice A. G. Byrdsong, Case: 22STLC04451, Date: 2024-03-12 Tentative Ruling

*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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Case Number: 22STLC04451    Hearing Date: March 12, 2024    Dept: 25

Hearing Date:                         Tuesday, March 12, 2024

Case Name:                             OLD REPUBLIC SURETY COMPANY, a corporation v. CALIFORNIA POOL MEN INC., a California corporation; RYAN JUNSAY, an Individual; WENDY DELGADO, an Individual; VERBHERT MALILIM, an Individual; PRINCESS MALILIM, an Individual; and DOES 1-20.

Cross-Complaint:                    PRINCESS MALILIM, an Individual and VERBHERT MALILIM, an Individual v. CALIFORNIA POOL MEN INC., a California corporation; ANDREW NATHAN O’NEILL, an Individual; ADAM NEIL AGUIRRE, an INDIVIDUAL; ANTHONY AGUIRRE, an Individual; HTIKHU ONEILL, an Individual; ROBERT VEGA, an Individual; OLD REPUBLIC SURETY COMPANY, a Wisconsin corporation; and ROES 1-20 inclusive.

Cross-Complaint:                    WENDY DELGADO, an Individual and RYAN JUNSAY, an Individual v. CALIFORNIA POOL MEN INC., a California corporation; ANDREW NATHAN O’NEILL, an Individual; ADAM NEIL AGUIRRE, an Individual; ANTHONY AGUIRRE, an Individual; HTIKHU ONEILL, an Individual; ROBERT VEGA, an Individual; OLD REPUBLIC SURETY COMPANY, a Wisconsin corporation; and ROES 1-20 inclusive

Case No.:                                22STLC04451

Motion:                                   Motion to Set Aside Dismissal of Cross-Complaint Filed by Verbhert Malilim and Princess Malilim; Motion to Set Aside Dismissal of Cross-Complaint Filed by Ryan Junsay and Wendy Delgado

Moving Party:                         Cross-Complainants Princess Malilim; Verbhert Malilim; Ryan Junsay; and Wendy Delgado

Responding Party:                   None

Notice:                                    OK

Tentative Ruling:                    Cross-Complainants Princess Malilim and Verbhert Malilim’s Motion to Set Aside Dismissal of Cross-Complaint is GRANTED.  

                                                Cross-Complainants Ryan Junsay and Wendy Delgado’s Motion to Set Aside Dismissal of Cross-Complaint is also GRANTED.

The Court further orders this action reclassified from the Limited Civil Jurisdiction Court to the Unlimited Civil Jurisdiction Court based on the amount of damages requested in each Cross-Complaint.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                      OK

[X] Correct Address (CCP §§ 1013, 1013a)                                      OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                       OK 

OPPOSITION:          None filed as of February 28, 2024                [   ] Late          [X] None 

REPLY:                     None filed as of March 05, 2024                    [   ] Late          [X] None 

BACKGROUND

On July 06, 2022, Plaintiff Old Republic Surety Company (“Plaintiff” or “Old Republic”) filed a Complaint for Interpleader against Defendants California Pool Men, Inc. (“CPM”), Ryan Junsay (“Ryan”), Wendy Delgado (“Wendy”), Verbhert Malilim (“Verbhert”), and Princess Malilim (“Princess”), (collectively “Defendants”).

On September 15, 2022, Defendants Verbhert and Princess filed a Cross-Complaint against Cross-Defendants Old Republic, CPM, Andrew Nathan O’Neill (“Andrew”), Adam Neil Aguirre (“Adam”), Anthony Aguirre (“Anthony”), Htikhu ONeill (“Htikhu”), Robert Vega (“Robert”), (collectively “Cross-Defendants”). On the same day, Defendants Wendy and Ryan filed a Cross-Complaint against Cross-Defendants.

Old Republic filed a General Denial to Wendy and Ryan’s Cross-Complaint on September 20, 2022, and General Denial to Verbhert and Princess’s Cross-Complaint on September 26, 2022.

On January 27, 2023, Plaintiff Old Republic filed a Motion to Deposit and Discharge Stakeholder. Plaintiff’s Motion was denied on April 27, 2023, given that Plaintiff did not deposit the funds with the Court.

On January 27, 2023, default was entered against CPM as to the Complaint. On April 14, 2023, default was entered against CPM as to both Cross-Complaints.

On April 27, 2023, Defendants Ryan, Wendy, Verbhert, and Princess filed a General Denial to the Plaintiff’s Complaint.

On May 09, 2023, Plaintiff Old Republic filed a Motion to Deposit and Discharge Stakeholder and for Attorney’s Fees.

On May 23, 2023, Plaintiff filed a Notice of Deposit of Bond Funds.

On July 26, 2023, the Court granted Plaintiff’s Motion to Deposit and Discharge Stakeholder, contingent on the Court’s confirmation that plaintiff has deposited funds with the clerk of the Court. The Court additionally reimbursed Plaintiff $2,000.00 in attorney’s fees and cost from the interpleader funds.

On January 03, 2024, the Court on its own motion placed the scheduled non-jury trial off calendar due to Defendants’ non-appearance. The Court additionally dismissed both Cross-Complaints pursuant to CCP 581(b)(5).

On February 14, 2024, Cross-Complainants Princess and Verbhert filed the instant Motion to Set Aside Dismissal of Cross-Complaint Filed by Verbhert Malilm and Princess Malilim. Cross-Complainants Wendy and Ryan similarly filed the instant Motion to Set Aside Dismissal of Cross-Complaint Filed by Ryan Junsay and Wendy Delgado.

No opposition has been filed.

On March 05, 2024, Cross-Complainants filed notices of non-opposition to the instant motions.

MOVING PARTY POSITION

Cross-Complainants Princess and Verbhert pray for the Court to vacate the dismissal of their Cross-Complaint entered on January 03, 2024. Princess and Verbhert argue that they are entitled to mandatory relief under CCP Section 473(b) because the dismissal was caused by their Counsel’s mistake, inadvertence, or excusable neglect. Wendy and Ryan similarly argue that they are entitled to mandatory relief under CCP Section 473(b) because of their Counsel’s error which resulted in Counsel not appearing at the scheduled hearing on January 03, 2024. Cross-Complainants collectively assert that no prejudice will result if the dismissals are set aside, and the Cross-Complaints are reinstated.

OPPOSITION

            No opposition has been filed.

REPLY

            No reply has been filed.

ANALYSIS

I.          Legal Standard

Under Code of Civil Procedure, section 473, subdivision (b), “the court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., §473(b)). Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) An application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise, or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) When relief from default and a default judgment is based on an attorney affidavit of fault, the six-month period starts to run from the date of the entry of the default judgment. (Code Civ. Proc., § 473, sub. (b); Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 295.)

II.        Discussion

Cross-Complainants move to set aside the dismissals, entered on January 03, 2024, of their respective Cross-complaints under Section 473(b). Cross-Complainants argue that their non-appearance was due to their attorney’s mistake, inadvertence, or excusable neglect and thus pray for mandatory relief under Section 473(b). Since both motions plead similar facts, the Court’s order will address both motions together. 

A. Motion to Set Aside Dismissal of Cross-Complaint Filed by Verbhert and Princess

The Court finds the Motion to be timely. CCP section 473(b) provides that an application for relief must be made no more than six months after entry of the order from which it was sought. (Code Civ. Proc., §473(b).) Here, the Court dismissed the Cross-Complaint filed by Verbhert and Princess on January 03, 2024. (01/03/2024 Minute Order.) Verbhert and Princess filed their motion on February 14, 2024, well within the six-month deadline. Thus, the motion is timely filed.

Verbhert and Princess provide the Court with their counsel’s declaration, in which he states that due to an internal calendaring error, Cross-Complainants’ counsel did not appear at the January 3 trial. (Michael Ayaz Decl. ¶ 17.)  Thus, based on Counsel’s declaration the Court finds that the error was caused by Plaintiff’s counsel’s mistake, inadvertence, or excusable neglect and therefore entitles Plaintiff to mandatory relief under Section 473(b).

            Accordingly, the Court GRANTS Cross-Complainants Princess and Verbhert’s Motion to Set Aside the Dismissal.

B. Motion to Set Aside Dismissal of Cross-Complaint Filed by Wendy and Ryan

Similar to the points raised above, the Court finds the motion to be timely. Here, the Court dismissed the Cross-Complaint filed by Wendy and Ryan on January 03, 2024. (01/03/2024 Minute Order.) Wendy and Ryan filed the instant motion to set aside the dismissal on February 14, 2024, within six weeks of the Court’s issuance of the dismissal. Therefore, the motion is considered timely.

Here, Wendy and Ryan provide the Court with the declaration of their counsel who avers that because of an internal calendaring error, Cross-Complainants’ counsel did not appear at the trial. (Michael Ayaz Decl. ¶ 17.) Thus, since the motion complies with Section 473(b), Wendy and Ryan are entitled to mandatory relief and the Court GRANTS their Motion to Set Aside the Dismissal.

III.       Conclusion

            Cross-Complainants Princess Malilim and Verbhert Malilim’s Motion to Set Aside Dismissal of Cross-Complaint is GRANTED.

            Cross-Complainants Ryan Junsay and Wendy Delgado’s Motion to Set Aside Dismissal of Cross-Complaint is also GRANTED.

            The Court further orders this action reclassified from the Limited Civil Jurisdiction Court to the Unlimited Civil Jurisdiction Court based on the amount of damages requested in each Cross-Complaint.

            Moving Party is ordered to give notice.