Page 1
Judge Erred in Axing Suit on His Own Motion Over Lawyer’s Fumbling, C.A. Declares
By a MetNews Staff Writer
A judge, exasperated over an attorney’s fumbling in seeking to have a default judgment entered in favor of his client for $9.42 million based on alleged unpaid debts, abused his discretion in ordering a dismissal of the action on his own motion, Div. Four of the Court of Appeal for this district’s held yesterday.
The unpublished opinion by Justice Audra Mori reverses a judgment by Los Angeles Superior Court Judge William F. Fahey in favor of defendant Ning Chen and against plaintiff Jian Xiong.
Xiong’s action, alleging breach of contract and common counts, was brought on April 11, 2022. On Feb. 28, 2023, Chen’s answer was stricken based on her failure to appear multiple times and disobeying a court order.
A hearing on Xiong’s application for a default judgment was held on April 18, 2023, but continued because the plaintiff’s lawyer, Noel Green, had not sent a courtesy copy of the default papers to the courtroom. Another hearing took place on June 6, 2023 but Fahey found the papers baffling, pointing out specific problems.
Green asked for another chance to make clear his client’s entitlement to the sums claimed and Fahey granted a “last and final continuance” to July 12.
Fahey’s Order
On July 12, Green did not appear. Fahey said in a July 14, 2023 order:
“Plaintiff’s counsel failed to appear at the third hearing on July 12,2023 to address the many issues which remained with the default application. Further,…plaintiff’s case has been poorly presented and has required an inordinate amount of time to attempt to understand it. This, of course, should not be the job of the Court….Moreover, presentations such as this one unfairly deprive or delay other properly prepared litigants of a prompt resolution of their cases.”
He enumerated problems that were unresolved and declared:
“[O]n this record, it would not be appropriate to have a fourth hearing in this case. Had this been a trial or other contested hearing, plaintiff would have had but one opportunity to make his case. Yet another hearing would just cause more delays and congestion in this Court.
“Accordingly, good cause having been shown,
“IT IS ORDERED that plaintiffs application for default judgment is denied and this case dismissed with prejudice.”
Reconsideration was sought based on Green’s declaration that he failed to appear at the hearing due to a calendaring error but the judge on Aug. 28 denied the motion.
Mori’s Opinion
In her opinion reversing the ensuing judgment, Mori said:
“In this case, the court appears to have relied on its inherent power to dismiss the action. When the court continued the OSC from June 6, 2023, to July 12, 2023, it indicated that would be the final continuance. But the court did not give plaintiff notice his case might be dismissed with prejudice on July 12. Plaintiff was entitled to notice and an opportunity to explain why the court should not dismiss his case with prejudice.”
She noted that it is only in extreme situations that a judge may dismiss an action pursuant to inherent powers, and declared:
“[T]he court’s order does not indicate that plaintiff, as opposed to counsel, caused the deficiencies or counsel’s failure to appear. Rather, the record indicates the court identified counsel as the source of the problems, observing that counsel had ‘poorly presented’ the case and failed to comply with multiple rules of court. Further, the record does not show the court considered lesser sanctions before dismissing plaintiff’s case with prejudice.”
She continued:
“When counsel failed to appear at the July 2023 hearing, the court could have continued the hearing and issued an order to show cause why counsel should not pay monetary sanctions to the court…. This would have provided counsel with an opportunity to offer his excuse for failing to appear and plaintiff’s testimony to prove entitlement to a judgment. Terminating plaintiff’s case without considering the client’s lack of fault or lesser sanctions, and with a lack of sufficient notice, constituted an abuse of discretion.”
The case is Xiong v. Chen, B332644.
Green represented Xiong on appeal. Chen did not appear.
Copyright 2024, Metropolitan News Company