Judge: William A. Crowfoot, Case: 22AHCV00029, Date: 2023-02-03 Tentative Ruling

Case Number: 22AHCV00029    Hearing Date: February 3, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

I.            INTRODUCTION

On July 19, 2022, Xiao Fan Peng and Zheng Zhou Sail Electronics Co., Ltd. (“Plaintiffs”) filed the operative second amended complaint (“SAC”) against Yun Xiang Tseng, Jing Zhao Cesarone, Anna Grace, Kristine A. Naldjian, Dao House, LLC, WDA, LLC, and Childwise International Corporation (“Defendants”).  The SAC alleges nine causes of action: (1) breach of contract; (2) intentional misrepresentation; (3) negligent misrepresentation; (4) false advertising; (5) conversion; (6) unjust enrichment; (7) intentional infliction of emotional distress; (8) purchase money resulting trust; and (9) alter ego.

Trial is currently scheduled for August 14, 2023.

On January 1, 2023, Plaintiffs filed a motion seeking mandatory relief, or alternatively, discretionary relief from the late filing of the motion to compel further responses under CCP § 473(b).  Plaintiffs’ counsel was late by less than two hours. 

On January 23, 2023, Defendants filed an opposition.

On January 27, 2023, Plaintiffs filed a reply.

II.          LEGAL STANDARD

Under CCP § 473(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.”  (CCP § 473(b).) 

Further, “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Ibid.)

“Notwithstanding any other requirements of this section, the court shall, 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, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting 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.”  (Ibid.)

III.        DISCUSSION

Plaintiffs seek mandatory relief, or alternatively, discretionary relief from the late filing of the motion to compel further responses under CCP § 473(b).  Plaintiffs’ counsel admits that the reason for the late filing was due to none other than his mistake, inadvertence, surprise, or excusable neglect.  The motions to compel and accompanying documents were finished drafting on the day of the deadline, however, counsel inadvertently miscalculated the time needed to properly file all the motions and documents due to his neglect which is excusable.

Defendants contend that when the Legislature amended the Discovery Act in 1986, it rendered motion to compel deadlines “mandatory and jurisdictional.”  In support of their argument, Defendants rely on Sexton v. Superior Court, 58 Cal. App. 4th 1403 (1997), 1409-10. Plaintiffs contend, however, that in Sexton, the motion to compel was filed well beyond the 45-day timeline, which is unlike this case because Plaintiffs’ counsel missed the deadline by less than two hours. 

Plaintiff are not be entitled to mandatory relief but may be entitled to discretionary relief under CCP § 473(b).    

The mandatory relief provision under CCP § 473(b) provides for mandatory relief from defaults, default judgements, and dismissals for mistake, inadvertence, surprise, or excusable neglect.  This provision, however, does not apply here because there was no default, default judgement, or dismissal.  (CCP § 473(b).)  Further, the cases cited by Plaintiffs in support of their argument involved defaults and default judgements. 

In contrast to the mandatory default provision of the statute, discretionary relief under the statute is not limited to defaults, default judgments, and dismissals.  (Ibid.)  The discretionary provision of the statute provides that “the [c]ourt may… 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.”  (Ibid.)  Plaintiffs contend that the late filing was caused due to the attorney’s excusable mistake, inadvertence, or neglect.  The Court agrees because Plaintiffs’ attorney began processing the sixty documents for e-filing at approximately 10:00 p.m. on the day of the motion to compel deadline and completed the filing early the next morning at 1:41 a.m., but later learned that some of the documents had been rejected because he neglected to format some of the documents in “PDF searchable formats.”  (Liu Decl. (June 9, 2023), ¶¶ 4,12-13.)  Upon learning of his mistake, Plaintiffs’ attorney refiled the rejected documents on November 29, 2022.  (Liu Decl., ¶14.)  Plaintiffs’ attorney states that he “unwittingly underestimated the time needed to file all the motions and accompanying documents after having finished drafting them.”  (Liu Decl., ¶ 11.)  Plaintiffs provide copies of the court filings, electronic service, and rejected filings.  (Liu Decl; Exhibits 2-7.)  Further, because Plaintiffs’ attorney missed the deadline by less than two hours, Defendants will not be prejudiced if the Court grants relief. 

Based on the foregoing, Plaintiffs’ motion for relief from late filing of motion is granted.

IV.         CONCLUSION

Plaintiffs’ motion for relief from late filing of motion is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at alhdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that 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 matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.