Motion to set aside order of dismissal
(Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 30).
“Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding ... The essence of extrinsic fraud is one party's preventing the other from having his day in court.” (Sporn v. Home Depot USA, Inc. (2005) 126 Cal. App. 4th 1294, 1300). Relief based on extrinsic fraud is not limited to fraud by the opposing party. Extrinsic fraud may include circumstances where “an attorney fraudulently or without authority assumes to represent a party and connives at his defeat ...” (Estate of Sanders (1985) 40 Cal.3d 607, 614, citing United States v. Throckmorton (1878) 98 U.S. 61, 65–66.
Here, Plaintiff has provided sufficient evidence to establish extrinsic mistake and/or extrinsic fraud. Plaintiff relied on her prior attorneys, the California Lawyers & Advocates, APC to pursue and prosecute her claims in a timely manner. (Mvg. Arroyo Decl., ¶ 6). As of April 2024, her prior attorneys assured Plaintiff that everything in her case “was going very well and not to worry – the case is almost done and the attorneys are fighting for the max.” (Id., ¶ 7). Plaintiff attempted to call her prior attorneys for an update, but never received a call back and her calls would go straight to voicemail. (Id., ¶ 8). Plaintiff became concerned and retained new counsel on May 15, 2025. (Id., ¶ 9). Plaintiff learned that the case was dismissed in April 2025, but was not informed by her prior attorneys. (Id.)
The court finds that this evidence the conduct of Plaintiff’s prior attorneys deprived Plaintiff of the opportunity to present her claim to the court and Plaintiff was kept ignorant and was prevented from fully participating in this action due to her prior attorneys’ conduct. The court will note that the evidence suggests a lack of diligence, given that Plaintiff retained new counsel on May 15, 2025, but did not file this motion until December 29, 2025.
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Nevertheless, given the liberal policy of allowing matters to proceed on the merits, on the court’s own inherent power, the motion is GRANTED on the condition that Defendants are properly served with the complaint within 30 days of this order. Plaintiff is admonished that the court will not likely entertain any further dilatory conduct by Plaintiff in prosecuting this action. 8 Liang v. Judicial Defendant Judicial Council of California’s demurrer to the Complaint filed Council of by Plaintiff Joseph Liang is SUSTAINED without leave to amend.
California In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)
In the underlying smalls claims action, Plaintiff was sued by a neighbor over an issue involving a residential drainpipe. (Compl. at p. 5, ¶ 1.) On Juen 22, 2023, the small claims court ruled against Plaintiff. (Id. at p. 5,
¶ 3.) Plaintiff alleges the ruling was not supported by substantial evidence. (Id. at p. 5, ¶¶ 2-3.)
Plaintiff appealed the small claims court’s decision to the Orange County Superior Court. (Compl. at p. 5, ¶ 4.) On September 18, 2023, the court ruled against Plaintiff. (Id.) Plaintiff claims the ruling relied on arguments never raised by the opposing party. (Id.)
On October 10, 2023, Plaintiff filed a Request for Court Order and Answer (Small Claims). (Compl. Exh. at p. 26.) Plaintiff requested that the court “Cancel the judgment → Supplementary reasoning”. (Id.) On October 20, 2023, the court issued its Order on Request for Court Order (Small Claims). The October 20, 2023 Order denied the request, stating “The Superior Court judgment on an appeal from the small claims court is final and not appealable. (Code Civ. Proc., § 116.780(a).)” (Id. at p. 27.) The court further explained that “[t]he Superior Court no longer has jurisdiction to vacate or review the judgment. (ERA-Trotter Girouard Assoc. v. Superior Court (1996) 50 Cal.App.4th 1851, 1856-1857.)” (Id.)
On March 26, 2024, the court issued an Order on Request for Court Order (Small Claims). (Compl. Exh. at p. 24.) The March 26, 2024 Order denied a March 5, 2024 Request for Court Order and Answer, stating “This request is duplicative of the one filed in October 2023. As previously stated the judgment is final and not appealable. (Code Civ. Proc., § 116.780(a).) and the court no longer has jurisdiction to vacate or review the judgment. (ERA-Trotter Girouard Assoc. v. Superior Court (1996) 50 Cal.App.4th 1851, 1856-1857.)” (Id.) The March 5, 2024 Request for Court Order and Answer is not included among the Complaint’s exhibits. (See generally Compl.)
On May 10, 2024, Plaintiff submitted a claim to Defendant for emotional damages and constitutional injuries. (Compl. at p. 5, ¶ 6.) Defendant denied the claim on June 25, 2024. (Id. at ¶ 7.)
Compliance with the Government Claims Act
A suit seeking “money or damages” within the meaning of the Government Claims Act (Gov. Code, §§ 905, 945.4) “includes all actions where the plaintiff is seeking monetary relief.” (Sparks v. Kern County Bd. of Supervisors (2009) 173 Cal.App.4th 794, 798.) Courts have held the claim process applicable in cases based on negligence (Martinez v. County of Los Angeles (1978) 78 Cal.App.3d 242), intentional tort (Cooper v. Jevne (1976) 56 Cal.App.3d 860), nuisance (City of San Jose v. Superior Court. (1974) 12 Cal.3d 447), and violation of a statutorily imposed duty (San Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553). “ ‘[T]he claims presentation requirement applies to all forms of monetary demands, regardless of the theory of the action.’ ” (Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, 338.)
In order to pursue a tort claim against a public entity or public employee under California state law, Plaintiffs must establish that they have complied with the claim presentation requirements of the Government Claims Act. (Gov. Code, §§ 945.4, 950.2.) “Before a civil action may be
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