Judge: Michael Shultz, Case: 19CMCV00296, Date: 2023-02-28 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.
2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and
3. Serve notice of the Court's ruling on all parties entitled to receive service.
If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 19CMCV00296 Hearing Date: February 28, 2023 Dept: A
19CMCV00296
Lawrence Chibueze, et al v. Telops International, Inc., et al
[TENTATIVE]
ORDER DENYING MOTION TO VACATE
The complaint
alleges that Defendant installed solar panels on Plaintiffs’ home that
Plaintiffs never agreed to purchase. Plaintiffs allege claims for fraud,
negligent hiring and supervision, slander of title, trespass to land,
promissory estoppel and unfair competition.
Plaintiffs’
counsel, Chima Anyanwu (“Counsel”), moves to vacate the Court’s order imposing
sanctions of $500 for failure to appear at an Order to Show Cause hearing on November
17, 2022, and for failing to comply with the Court’s October 4, 2022 order to
serve Plaintiffs with the order granting Counsel’s motion to be relieved as
counsel of record. (M.O. 12/7/22).
Counsel contends
that he did not appear at the October 4 hearing because of ill health and
believed the motion would be taken off calendar. (Decl. of Anyanwu, ¶ 4). Counsel
was not aware that the motion to be relieved was granted and that he was
ordered to serve Plaintiffs with the order and file a proof of service. Counsel
did not receive the Clerk’s notice that he was required to appear on November
17 and December 7 when Counsel left the country. Both notices were returned as undeliverable.
Counsel became aware of the preceding events upon his return to the country in January
of 2023.
The Court has discretion to grant
relief from an order or other proceeding taken against him or her through his
or her mistake, inadvertence, surprise, or excusable neglect. (Code Civ.
Proc., § 473 subd (b)). Relief
under section 473 is proper where “a party is unexpectedly placed in a
situation to his injury without fault or negligence of his own and against
which ordinary prudence could not have guarded.” (Elms v. Elms (1946) 72 Cal.App.2d 508, 513).
The Court’s
records reflect that Counsel filed a notice of change of address from 3440
Wilshire Blvd., Suite 860 to 3460 Wilshire Blvd., Suite 1214. (Ntc. 6/15/21). The Court’s records were not
updated to reflect the change resulting in all subsequent notices being sent to
the former address. However, Counsel has not shown mistake, inadvertence,
surprise, or excusable neglect for failing to appear at Counsel’s noticed
motion on October 4, 2022.
While the
Clerk’s mailed notice was returned as undeliverable, Counsel does not explain
why he did not call the Clerk to inform of his inability to appear at his
motion hearing to be relieved or to confirm the Court’s disposition of his
motion. (Notc.
11/28/22). The tentative ruling was posted to the Court’s website, and the
Court’s minute order for that date also reflects the final ruling and the
requirement to appear on November 17, 2022, for an order to show cause hearing.
(Min. Ord. 10/4/22). Accordingly,
Counsel has not shown excusable neglect to vacate the sanction of $500 imposed
for failing to appear on November 17 which could have been avoided had Counsel
contacted the Clerk on October 4 and reviewed the tentative and the final
order.
Moreover, Counsel
remains Plaintiffs’ counsel of record because as of this date, Counsel has not
complied with the October 4 order requiring proof of service of the signed
order on the Plaintiffs. The order granting relief was not effective until such
service was made. Therefore, Counsel’s motion is DENIED.