Judge: Steven A. Ellis, Case: 23STCV04152, Date: 2025-02-21 Tentative Ruling

Case Number: 23STCV04152    Hearing Date: February 21, 2025    Dept: 29

Griffin v. JCKY Property Investment LLC
23STCV04152
Plaintiffs’ Motion to Set Aside Dismissal

Tentative

The motion is granted under Code of Civil Procedure section 473, subdivision (b).

Plaintiffs’ counsel is ordered to pay $250 to the State Bar Client Security Fund under Code of Civil Procedure section 473, subdivision (c).

Background

On February 24, 2023, Linda Griffin and Darnell Thomas (collectively “Plaintiffs”) filed a complaint against JCKY Property Investment LLC, Xiao He Chen, Roslyn Flood, and Does 1 through 25 for general negligence, premises liability, and intentional tort arising out of Defendant Flood’s alleged assault of Plaintiffs on August 7, 2021.

On June 15, 2023, the default of Defendant Flood was entered.

On May 10, 2024, JCKY Property Investment LLC and Xiao He Chen filed an answer. JCKY Property Investment LLC and Xiao He Chen were dismissed on August 30, 2024.

Although her default had previously been entered, Defendant Flood (representing herself) filed an answer on August 7, 2024.

On September 5, 2024, the date of the Final Status Conference, Plaintiffs’ counsel appeared.  Defendant did not.  At the request of Plaintiffs, the trial date was continued to November 20, 2024.

On November 20, 2024, the date of trial, Plaintiffs and their counsel did not appear.  Defendant Flood appeared.  The Court dismissed the action without prejudice.

On January 21, 2025, Plaintiff filed this motion to set aside the dismissal.

No opposition has been filed.

Legal Standard

Code of Civil Procedure section 473, subdivision (b) provides for both discretionary and mandatory relief from dismissal.

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

Discussion

Plaintiffs’ counsel had notice of the trial date (and, indeed, it was set at counsel’s specific request), but he did not appear at trial.  Plaintiffs now move to set aside the dismissal that resulted from the failure to appear; in support of the motion, counsel declares that he had “technical difficulties” on the day of trial, and that his failure to appear was “inadvertent” and his “error.” (Akubuilo Decl., ¶ 3.) 

The Court finds counsel’s declaration sufficient to support mandatory relief under Code of Civil Procedure section 473, subdivision (b).  Counsel’s mistake or inadvertence caused the failure to appear, which resulted in the dismissal.

Code of Civil Procedure section 473, subdivision (c), also provides as follows:

“(1) Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following:

(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.

(C) Grant other relief as is appropriate.

(2) However, where the court grants relief from a default or default judgment pursuant to this section based upon the affidavit of the defaulting party’s attorney attesting to the attorney’s mistake, inadvertence, surprise, or neglect, the relief shall not be made conditional upon the attorney’s payment of compensatory legal fees or costs or monetary penalties imposed by the court or upon compliance with other sanctions ordered by the court.”

The Court has reviewed the file and considered the evidence in the record.  The Court exercises its discretion, upon granting relief under Code of Civil Procedure section 473, to direct that the offending attorney, Jude A. Akubuilo, Esq., pay the amount of $250 to the State Bar Client Security Fund.  (Code Civ. Proc., § 473, subd. (c)(1)(B).)

Finally, the Court notes that the court file contains both an entry of default of Defendant Flood and an answer filed by her.  To address this anomaly, the Court expects that either (1) Plaintiffs will file a motion to strike Defendant’s answer or (2) Defendant will file a motion for relief from default.  But that issue is not before the Court at this time.

Conclusion

The Court GRANTS Plaintiffs’ motion to set aside the dismissal.

The Court SETS ASIDE the dismissal entered on November 20, 2024.

Pursuant to Code of Civil Procedure section 473, subdivision (c)(1)(B), the Court ORDERS Plaintiffs’ counsel Jude A. Akubuilo, Esq., to pay $250 to the State Bar Client Security Fund, and to file proof of payment with the Court, within 30 days.

The Court sets a Trial Setting Conference on March __, 2025, at 8:30 am in Department 29 of the Spring Street Courthouse.

The Court sets an OSC re proof of payment of $250 by counsel Jude A. Akubuilo, Esq. to the State Bar Client Security Fund on March __, 2025, at 8:30 am in Department 29 of the Spring Street Courthouse.

Plaintiffs are ordered to give notice.