Judge: Steven A. Ellis, Case: 21STCV23323, Date: 2025-01-29 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 
IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 
ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 21STCV23323    Hearing Date: January 29, 2025    Dept: 29

Townsend v. Kang
21STCV23323
Plaintiff’s Motion to Set Aside Orders and Vacate Judgment

Tentative

The motion is denied.

Background 

This arises from an alleged battery that occurred on July 1, 2019.  Plaintiff Kali Jamal Townsend (“Plaintiff”) filed this action on June 23, 2021, asserting a battery cause of action against Defendant Byung Woo Kang, individually and dba Sunset Plaza Liquors (“Defendant”), and Does 1 through 10.

On May 1, 2023, Defendant filed an answer.

On May 4, 2023, Plaintiff filed a substitution of attorney indicating that he was representing himself in pro per. 

On August 14, 2023, the Court granted Defendant’s motion to compel Plaintiff to respond to Form Interrogatories (Set One).  Plaintiff did not oppose the motion or appear at the hearing.

On March 6, 2024, the Court granted Defendant’s motion to deem the truth of the matters asserted in Request for Admissions (Set One).  Plaintiff did not oppose the motion or appear at the hearing.

On March 18, 2024, Defendant filed a motion for summary judgment.  Plaintiff did not file any opposition. 

On August 22, 2024, the motion for summary judgment came on for hearing.  Defendant’s counsel and Plaintiff appeared.  Plaintiff requested a continuance of the hearing so that he could retain counsel.  At the close of the hearing, the Court took the matter under submission. 

On August 23, 2024, the Court issued a written ruling denying Plaintiff’s request for a continuance and granting Defendant’s motion for summary judgment.  Judgment was entered on September 26, 2024.

At the time of the summary judgment hearing, trial was scheduled for October 7, 2024.

On October 11, 2024, Plaintiff filed a substitution of counsel.

On November 5, 2024, Plaintiff, how represented by counsel, filed this motion to set aside the orders and judgment under Code of Civil Procedure section 473, subdivision (b). Defendant filed an opposition on January 13, and Plaintiff filed a reply on January 22, 2025.

Legal Standard

Code of Civil Procedure section 473, subdivision (b) provides for both discretionary and mandatory relief from a judgment or entry of default. 

As to discretionary relief, the statute states: “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 of Civil Procedure § 473, subd. (b).) Where such an application for discretionary relief is made, the motion must be accompanied by a copy of the answer or pleading proposed to be filed; “otherwise the application shall not be granted.”  (Ibid.)  The application for relief must be made within a reasonable time, and in no case exceeding six months after the judgment. (Ibid.)

The statute also provides for mandatory relief from dismissal, default, or default judgment:

“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 … unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” 

(Ibid.)

A request for discretionary relief under section 473, subdivision (b), must be made (subject to certain exceptions) “within a reasonable time, in no case exceeding six months.”  (Ibid.)  A request for mandatory relief must be made within six months.  (Ibid.)

Discussion

At the outset, the Court notes that there is a strong public policy in favor of the resolution of disputes on the merits.  There is also, of course, a strong public policy in favor of the finality of judgments.  The Legislature has addressed this tension by establishing a number of specific provisions for a party to seek relief from a judgment (and other orders).

In this case, Plaintiff seeks to set aside and vacate orders and a judgment under Code of Civil Procedure section 473, subdivision (b).

In support of the motion, Plaintiff files two declarations.  First, he files a declaration from his new counsel.  New counsel attaches certain documents but provides no testimony of his own mistake, inadvertence, surprise, or neglect.

Second, Plaintiff submits his own declaration.  In his declaration, he begins by recounting his version of the events that gave rise to the litigation.  (Townsend Decl., ¶¶ 3-6.)  Plaintiff notes that his counsel substituted out, and Plaintiff began to represent himself, in May 2023.  (Id., ¶ 7.)  Plaintiff states that thereafter, he “attempted to litigate on my own behalf” while also “working as a truck driver supporting a family of four and suffering from the … injuries [from the attack] and PTSD that accompanied this incident.”  (Id., ¶ 8.)  Plaintiff testifies that he sought new representation and contacted several lawyers.  (Id., ¶¶ 9-11 & Exhs C-D.)  But, Plaintiff states, due to his work schedule, his efforts to support his family, and his attempts “to self-medicate the trauma I suffered, I was unable to find representation as I had little time to meet in person with potential law offices and lawyers so that they would genuinely understand my case.  (Id., ¶ 12.)  Plaintiff then recounts how he met and retained his current counsel.  (Id., ¶¶ 13-17.)

Based on these facts, Plaintiff seeks discretionary relief under Code of Civil Procedure section 473, subdivision (b).  Missing from Plaintiff’s declaration, however, is any showing of a basis for the relief he seeks: he has not shown any “mistake, inadvertence, surprise, or excusable neglect.”  He was aware of his case, he was sent notice of the various court proceedings, he does not state that he did not receive these notices, he was aware of the pending motion for summary judgment (and he appeared at the hearing), but the fact remains that he did nothing to litigate his case for more than one year and he did nothing to oppose a dispositive motion for five months.  Although the Court is aware of the difficulties that Plaintiff and other self-represented litigants face in our civil justice system, such difficulties – whether considered alone or combined with the evidence presented in connection with this motion – do not on this record constitute mistake, inadvertence, surprise, or excusable neglect.  The Court exercises its discretion to deny the request for discretionary relief under section 473, subdivision (b).

To the extent that Plaintiff is essentially arguing that the Court erred in not granting his oral request for a continuance of the summary judgment hearing (made for the first time at the hearing), the Court notes that Plaintiff did not file a timely motion for reconsideration under Code of Civil Procedure section 1008 – nor could he have, as Plaintiff offers no facts that could not have been presented to the Court in connection with a timely opposition to Defendant’s summary judgment motion and/or a timely request for a continuance of the hearing.

Finally, to the extent that Plaintiff is seeking to set aside the order of March 6, 2024, granting Defendant’s motion to deem the truth of the matters asserted in Request for Admissions (Set One), Plaintiff’s motion is also denied on procedural grounds.  The motion is untimely under Code of Civil Procedure section 473, subdivision (b).  In addition, the appropriate method to seek such relief is through a motion made under Code of Civil Procedure section 2033.300.

Accordingly, the motion to set aside orders and the judgment is DENIED.

Conclusion

The Court the Court DENIES Plaintiff’s motion to set aside orders and the judgment.

Moving Party is to give notice.