Jones, et al. v. Taylor

CASE NUMBER: 22CV-0201290 Tentative Ruling on Motion for Relief from Order and to Set Aside Judgment of Dismissal Pursuant to CCP § 473(b): Plaintiffs Tiffanie Jones, Kim Harmon and Stephen Huston seek relief pursuant to CCP § 473(b). Defendant Sally Taylor did not respond to the motion. Plaintiffs filed two proofs of service. In the Proof of Service by First-Class Mail, the address used for service is not listed on pleadings in this matter, is not counsel’s address of record in this matter, and is not the address listed for counsel on the State Bar’s website.

Additionally, the service by mail was untimely. CCP § 1005(b). However, the Proof of Electronic Service is in proper form and reflects timely service using the email address listed for Defendant’s counsel on the pleadings in this matter. Based on the Proof of Electronic Service, the Court finds that this motion was properly noticed.

The Order from which Plaintiffs seek relief is dated May 11, 2026. The Order granted Defendant’s Motion to Terminate Case which was heard on that same date. The motion was properly noticed. However, Plaintiffs did not file an Opposition. Counsel for Plaintiffs, Daniel Henderson, appeared at the hearing and argued the merits of the motion. The Court adopted the tentative ruling, which was to grant the motion. Granting of the motion resulted in a dismissal of Plaintiffs’ Complaint. A Motion for Reconsideration was filed on May 19, 2026. This motion was denied on June 1, 2026 for being untimely filed and there being insufficient proof that Defendant received notice of the Motion for Reconsideration. On August 3, 2026 the Court entered judgment in favor of Defendant.

In support of the motion at issue today, Eric Alan Berg provided a declaration stating that he is the principal of the Law Office of Berg & Associates and as the principal, he is responsible for supervision of this matter. Mr. Berg failed to ensure that the Motion for Reconsideration was timely filed and properly noticed. Mr. Berg also 5

failed to ensure that a written opposition was filed in the Motion to Terminate Case. Mr. Berg provides that these omissions were the result of his own oversight and not the result of any willful conduct, bad faith, or defiance of the discovery statutes.

CCP § 473(b) has both a discretionary provision and a mandatory provision. Plaintiffs move under the mandatory provision.

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 the attorney’s mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against the attorney’s client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against the attorney’s client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.

The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310. CCP § 473(b).

Plaintiffs have presented evidence that their attorney’s mistake, inadvertence, and neglect resulted in a dismissal being entered. This motion was filed within the required six-month period for bringing a motion. Therefore, the relief requested is mandatory. While it is unclear from the moving papers the exact relief requested, based on the proposed Order attached to the moving papers, it appears that Plaintiffs are seeking a denial of the Motion to Terminate Case. However, the neglect of counsel was failure to file a written Opposition. Allowing Plaintiffs to file a written Opposition would not necessarily result in the Motion to Terminate Case being denied. Therefore, the only relief Plaintiffs are entitled to is the opportunity to file a written Opposition to the Motion to Terminate Case.

The Court will set aside the Judgment entered on August 3, 2026 and reset the Motion to Terminate Case for hearing, which will allow Plaintiffs to file a written opposition. However, this will not occur until Defendant is compensated for legal fees and costs reasonably incurred based on Plaintiff’s counsel’s neglect.

(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. CCP § 473(c).

Defense counsel may submit an affidavit detailing the attorney fees and costs incurred for any work done on the matter after May 11, 2026. The Court intends to order that Plaintiff’s counsel pay all reasonable legal fees and costs incurred due to Plaintiff’s counsel’s neglect in this matter. Because this is not a default or default judgment, 6

CCP § 473(c)(2) does not apply. Given the history of monetary sanctions in this matter that have not been paid by Plaintiffs and the long history of noncompliance, the Court will set the reasonable legal fees and costs and require payment by Mr. Berg (not Plaintiffs) prior to setting aside the judgment and resetting the Motion to Terminate. When the hearing is set, the Court will allow Plaintiffs to file an Oppositon and Defendant to file a Reply. The Court will then hear the Motion to Terminate Case on the merits.

The Motion for Relief from Order and to Set Aside Judgment of Dismissal Pursuant to CCP § 473(b) is GRANTED. Relief is conditioned on compensation to Defendant for legal fees and costs reasonably incurred in an amount to be determined by the Court. Plaintiffs did not submit a proposed Order as required by Local Rule of Court 5.17(D). Plaintiffs are ordered to submit an order consistent with the Court’s ruling.

An appearance by both counsel is necessary in order to determine when Defendant will be able to submit an affidavit regarding legal fees and costs incurred after May 11, 2026. Once that sum has been determined and paid by Mr. Berg, the Court will set aside the Judgment and set the Motion to Terminate Case for hearing.

JORDAN, II VS. SITE WORK SOLUTIONS