Judge William A. Crowfoot, Case Number: 22AHCV00756, Date: 2023-05-01 Tentative Ruling

Judge: William A. Crowfoot, Case: 22AHCV00756, Date: 2023-05-01 Tentative Ruling

This is an unlawful detainer action seeking eviction and past due rent. On May 1, 2023, the Court issued an order (May 1 Order) granting plaintiff Concord Property Management, Inc.’s motion for terminating sanctions against defendant Xiaoli Harris dba Noodle Bistro (“Defendant”) after Defendant failed to serve discovery responses to requests which were propounded in November 2022. Defendant’s answer was stricken from the record and default was entered against Defendant on May 4, 2023.

On June 13, 2023, Defendant filed this motion to set aside the May 1 Order. The motion is brought pursuant to Code of Civil Procedure section 473(b). Plaintiff filed an opposition brief on July 21, 2023. No reply brief is on file.

Code of Civil Procedure section 473(b) includes two avenues for obtaining relief. The first provision grants discretionary relief and states that a court “may ... 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.” (Code Civ. Proc., § 473, subd. (b).) The second provision allows for mandatory relief from defaults, default judgments or dismissals if an application for relief is filed within six months after the entry of judgment, is in proper form, and is accompanied by an attorney's affidavit of fault, “unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (Ibid.)

Defendant argues that the May 1 Order should be vacated because defense counsel, Les V. Amponsah, was substituted in on March 3, 2023, and committed that Defendant’s discovery responses would be resent to Plaintiff’s counsel, and responses were, in fact, sent. Defendant submits a declaration from Miranda Chen, who states that she mailed Defendant’s outstanding discovery documents via certified mail to Plaintiff’s counsel and emailed the responses to Plaintiff’s counsel on March 3, 2023. (Chen Decl., ¶¶ 4.) This argument misses the point of Plaintiff’s sanction motion, which was based on those same incomplete responses served on March 3, 2023.

Defendant also argues that the May 1 Order should be vacated because Mr. Amponsah was not in the best of health nor was he aware that a motion for terminating sanctions had been filed. Mr. Amponsah vaguely states that he “wasn’t accessing his office emails” and that his offices are “currently the subject of a Quiet Title Action [sic] and [he] therefore did not receive any mail regarding the ‘Discovery Motions.’” (Motion, Amponsah Decl., ¶¶ 1, 3.) However, in opposition, Plaintiff’s counsel details multiple opportunities throughout March to secure Defendant’s cooperation with discovery, with no success. For instance, on March 10, 2023, Plaintiff’s counsel first notified Mr. Amponsah that sanctions against his client were contemplated. (Opp., Ex. E.) Plaintiff’s counsel also made several phone calls in an attempt to meet and confer with Mr. Amponsah in preparation for Defendant’s deposition, all of which were ignored. Defendant did not file a reply brief or supplemental evidence to rebut these claims.

The Court finds that mandatory relief is not available because there is no evidence that Defendant’s failure to obey the Court’s discovery orders to serve discovery responses and pay sanctions, which was the underlying reason for the May 1 Order granting terminating sanctions, was the result of Mr. Amponsah’s mistake, neglect, inadvertence, or surprise. Earlier on January 30, 2023, Defendant filed a substitution of attorney stating she was self-represented. After the Court granted Plaintiff’s discovery motions, Defendant was obligated to serve responses and pay sanctions within 20 days of the service of the notice of ruling, which would be February 23, 2023 (15 days + 5 calendar days for mail service). Mr. Amponsah declares that he had “barely entered into the case” when he appeared at the trial setting conference on March 3, 2023, and his declaration does not state when he was retained by Defendant or whether it was before the deadline to serve responses and pay sanctions.

Mandatory relief is also not allowed because an attorney's application for mandatory relief from a sanctions order imposed for failing to provide discovery must include verified discovery responses. “Such service would demonstrate a willingness and ability to comply with discovery requests and related orders and demonstrate that pending discovery would not be a source of further delay.” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 729.) The requests may be served at or before the hearing on the motion for relief. (Ibid.) Here, no verified discovery responses were attached to the motion showing that Defendant would be ready to resume litigation without further delay.

With respect to the discretionary provision of section 473(b), the Court also finds that relief is not warranted. Defendant submits no declaration attesting to any mistake, inadvertence, surprise, or excusable neglect on her part and as further discussed below, Mr. Amponsah’s declaration is insufficient for this purpose.

“Excusable neglect,” for purposes of section 473(b) exists when reasonably prudent person in similar circumstances might have made same error. (See County of San Bernardino v. Mancini (2022) 83 CalApp.5th 1095, 1103-1104.) “Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.”” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 [citing Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 683, 68].)

Here, defense counsel failed to return Plaintiff’s counsel’s multiple telephone calls, failed to oppose the motion for terminating sanctions, and apparently advised his client that she was not required to pay sanctions. (Motion, p. 4.) Defense counsel does not even try to explain how his conduct is excusable and the Court can think of none on his behalf.

William A. Crowfoot

Judge of the Superior Court

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.