Judge: Margaret L. Oldendorf, Case: EC067770, Date: 2023-08-17 Tentative Ruling
Case Number: EC067770 Hearing Date: August 17, 2023 Dept: P
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
DONGZHOU XUE, Plaintiff, vs. GUANKUN LI, an individual; HALAL FOOD CO., LTD., a China company; and DOES 1 through 50, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: EC067770 [TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION FOR RELIEF FROM DISMISSAL Date: August 17, 2023 Time: 8:30 a.m. Dept.: P
I. INTRODUCTION
This collection action was filed in March 2018. Plaintiff Dongzhou Xue, who resides in China, alleges that he loaned money to Defendants Guankun Li and Halal Food Co., Ltd. In a series of transactions. The loans are alleged to have occurred between December 2013 and July 2014. Xue alleges that he lent defendants a total of approximately “RMB $25,800,000,” an amount he alleges is “no less than $4,000,000.” First Amended Complaint, ¶1.” Xue alleges none of it has been repaid.
The Court summarizes the lengthy history of the litigation for context. Li filed an answer September 17, 2018. He was represented by counsel at the time. On August 16, 2019, Xue’s application for a writ of attachment against Li was heard and denied by a prior bench officer (Judge Ralph Hofer, Department D, Glendale). On October 3, 2019, Li’s attorney filed a substitution of attorney, and Li became self-represented. Nearly two years later, Judge Hofer set an OSC re: dismissal for lack of prosecution of the action. Shortly after that, the case was transferred to Judge Leis in the Alhambra Courthouse. On December 9, 2021, Judge Leis conducted the OSC hearing. Xue appeared through counsel, who indicated that he was interested in prosecuting the case. The OSC was discharged. In March 2021, Judge Leis set another OSC re failure to prosecute the action. On June 22, 2022, Judge Leis conducted the hearing and discharged the OSC. He set a trial date for February 21, 2023.
In September 2022, the case was transferred to the present Court. At the final status conference on February 9, 2023, Defendant Li failed to appear. The Court vacated the trial date, and set an OSC re entry of default or dismissal. Shortly thereafter, Xue dismissed Halal Food Co., Ltd. Notice of the April 4, 2023 OSC was provided to Li, but he again failed to appear. The Court set another OSC re failure to appear for May 23, 2023; and when Li failed to appear on that date, the Court struck Li’s answer and entered his default.
The case was then placed on calendar for a default prove up on June 21, 2023. Xue had submitted papers in support of a default judgment prior to the hearing. The Court inquired about the conversion of yuan to dollars, and put the matter over to July 13, 2023 for further briefing. On July 13, 2023, there was no appearance by Xue, and no supplemental evidence had been filed. The Court dismissed the action without prejudice. Xue now moves to set aside the dismissal. As the motion is timely and accompanied by an attorney affidavit of fault, the motion is granted.
II. LEGAL STANDARD
Code Civ. Proc. §473(b) provides that the court “may,” on any terms as may be just, relieve a party from a judgment, dismissal, order, or other proceeding taken against him or
her through his or her mistake, inadvertence, surprise, or excusable neglect. It further provides that such motion “shall be accompanied by a copy of the answer or other pleading proposed to be filed,” otherwise the motion shall not be granted.
In addition to such discretionary relief, the statute also provides that whenever an application for relief is made within 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, the court “shall” vacate any default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.
III. ANALYSIS
Xue’s motion was timely filed within 6 months of the dismissal, and it is accompanied by his attorney’s sworn affidavit of fault. Attorney Jing Wang declares that the reason for her failure to appear at the July 13, 2023 hearing was that she inadvertently failed to calendar it. Wang Declaration, ¶3. She states that her failure to appear was a mistake within the meaning of Code Civ. Proc. §473(b). Though the motion seeks discretionary relief, the evidence provided indicates that mandatory relief is appropriate.
Xue has filed a number of declarations with additional evidence regarding the exchange rate with his motion for relief. The sufficiency of the evidence and the further relief requested (entry of judgment) will be considered at a future date, to be scheduled after consultation with Xue’s counsel.
IV. ORDER
Xue’s motion for relief from dismissal is granted pursuant to Code Civ. Proc. §473(b) .
Dated: _______________________________
MARGARET L. OLDENDORF
JUDGE OF THE SUPERIOR COURT