Motion to Set Aside/Vacate Dismissal
to grant the motion, because Plaintiff has met its initial burden and Defendant has not filed an opposing separate statement.
Plaintiff shall give notice of the ruling and submit a proposed judgment to the Court and serve it upon all parties.
102 2024-01443801 Motion for Judgment on the Pleadings
Qiu vs. You Media Plaintiff Weijia Qiu’s Motion for Judgment on the Pleadings on the Second Amended Inc. Complaint is taken off calendar as moot.
The motion was directed to the unverified answer filed by Defendants on or about 4/2/26. (ROA 69.) On or about 7/6/26, Defendants filed a verified first amended answer. (ROA 80.) Accordingly, the Court finds the motion is moot.
The Clerk shall give notice of the ruling.
103 2020-01126907 Motion for Entry of Judgment
Security National No tentative issued. Insurance Company vs. DCE Construction Inc.
104 2021-01208837 Motion to Set Aside/Vacate Dismissal
Rudat vs. Sauter The motion of plaintiff Daniel Rudat and cross-defendants Fred and Marta Rudat for an order setting aside the dismissal entered on 3/16/26 is denied. [ROA # 476.]
Facts This was an action by Daniel Rudat to recover for personal injuries he suffered when he fell off the roof of a house he had been hired to do construction on by its owner, Gary Sauter and/or Longview Investments LLC. [First Amended Complaint (“FAC” – ROA #25), ¶¶ 9-11; Doe 1 Amendment (ROA #106).] The house was located in the state of Washington. [FAC, ¶ 8.]
Plaintiff was represented by the law firm of Pratt Williams, APLC/Pratt Law Group in the filing of his complaint and throughout this action until its dismissal on 3/16/26. [Id. and ROA ## 53, 463.] He was also represented by Kramer Trial Lawyers through trial. [ROA ## 243, 432, 448.]
Sauter responded to the FAC. [ROA ## 29, 51.] Then, he and Longview filed a cross- complaint for indemnity against Fred and Marta Rudat. [First Amended Cross-Complaint (“FAXC” – ROA #201), ¶¶ 8-16.] Fred and Marta Rudat answered the FAXC through attorney Edward Sublett, who has represented them throughout. [ROA #230.]
On 4/16/24, the parties stipulated to trifurcating the trial so that the conflict of law issue (California versus Washington law) would be tried to the Court first. [ROA #271.] Further, they stipulated that if Washington Law was found to apply Plaintiff’s complaint would be dismissed without prejudice. [Id., ¶ 6.]
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that Washington law applied. [11/10/25 Minute Order (ROA #447).] On 3/16/26, Plaintiff and Cross-Complainants together requested and obtained dismissal of their pleadings. [ROA #463.]
On 3/20/26 Edward Sublett substituted in as Plaintiff’s counsel in place of Pratt Law Group. [ROA #470.]
Now, through counsel Sublett, Plaintiff and Cross-Defendants seek to have the dismissal set aside on the ground of mistake under Code of Civil Procedure section 473(b)
Legal Standard Code of Civil Procedure section 473(b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable neglect.” Generally, there are two avenues to such relief under Code Civ. Proc. § 473(b). Leader v. Health Industries of Am., Inc. (2001) 89 Cal.App.4th 603, 615. First, a court may grant discretionary relief upon the moving party’s showing of mistake, inadvertence, surprise or excusable neglect. Id. at 615-616. Second, where the defaulting party’s attorney files an attorney affidavit of fault the relief is mandatory. Id.
Discussion
First, Plaintiff apparently seeks mandatory relief from dismissal of his complaint based on the attorney’s affidavit of fault. [See Sublett Decl. (ROA #472), at 2:24-25.] The problem with this is that Sublett was not Plaintiff’s counsel at the time of the dismissal, much less when the parties filed the Stipulation that set the stage for it. Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 821 (“Attorney Rohr filed an affidavit stating the defaults were the result of surprise and neglect. However, he was not representing Nabers at the time the defaults were obtained.”).
Any error by Sublett did not impact Plaintiff, who had his own counsel. McClain v. Kissler (2019) 39 Cal.App.5th 399, 427–428 (“The mandatory relief prong of section 473(b) refers to ‘an attorney's sworn affidavit attesting to his or her mistake, [etc.]’ and a ‘resulting default” or “default judgment” entered “against his or her client.’”).
Counsel Sublett was Cross-Defendant’s counsel at that the time. Cross-Defendant themselves do not have standing to seek to set aside the dismissal of the complaint to which they were not a party.
Second, Plaintiff seeks discretionary relief to set aside the dismissal of his complaint asserting, through Sublett, mistake as to the legal ramifications of dismissal versus judgment. Again, though, there is no evidence that Plaintiff’s counsel was mistaken when signing the dismissal. Nor is there any evidence that Plaintiff himself was misled.
Moreover, the arguments asserted do not account for the prior Stipulation that set forth an agreement not only for trifurcation of trial but as to the result – that is, dismissal of the complaint – if the Court were to find (which it did) that Washington law applied to Plaintiff’s claims. If the dismissal were set aside, the Stipulation requiring entry of dismissal would remain.
It should also be noted that the Stipulation pre-dated the dismissal by two years. That would have been ample time for counsel and the parties involved to understand what they were doing. The fact that there was no attempt to deviate from the plan prior to dismissal suggests that Plaintiff’s counsel did not view the Stipulation or the dismissal to be a
mistake.
Finally, the usual policy favoring resolution on the merits is not in play here. Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696 (“The policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.”)(internal quote marks omitted). Plaintiff did get a trial and ultimate resolution on the merits. The dismissal was the result of that trial and resolution.
Based on all of the above, the motion to set aside the dismissal entered in this action is denied. Clerk is ordered to give notice.
105 2025-01526242 Motion for Leave to File Cross Complaint
Luna vs. Eckart The Court grants Defendant Mike Allen Eckart’s unopposed motion to file the proposed cross complaint against Plaintiff Levin Luna.
Here, the proposed cross-complaint is compulsory. Therefore, the motion must be granted unless there is bad faith or prejudice. The Court finds neither.
Thus, the motion is granted.
Defendant shall file and serve his cross-complaint within 15 days.
Defendant is ordered to serve notice.
106 2025-01525012 Demurrer to Amended Complaint
Blalock vs. Defendant Swinerton, Inc.’s demurrer to Plaintiff Wendy Blalock’s First Amended Swinerton Complaint (“FAC”) is overruled. Incorporated Defendant’s request for judicial notice is granted.
Plaintiff is ordered to give notice.
107 2024-01407287 Demurrer to Amended Complaint
Mirrafati vs. Continued to September 23, 2026 at 2:00 p.m. in Department C27. California Receivership Group, Inc.
110 2026-01554043 1. Demurrer to Complaint 2. Case Management Conference Noh vs. Galbi Station, Inc. Defendants Galbi Station, Inc. and Kyungsuk Park’s (“Defendants”) Demurrer to Plaintiff Kyunghee Noh’s (“Plaintiff”) Complaint is sustained with 30 days’ leave to amend.
1st COA for Breach of Contract & 2nd COA for Breach of the Implied Covenant “A cause of action for breach of contract requires [1] pleading of a contract, [2] plaintiff’s