On 10/27/2017 IVO NKWENJI filed a Contract - Other Contract lawsuit against ROUNDTREE 1 VAN NUYS, LLLC. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judge overseeing this case is SHIRLEY K. WATKINS. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Van Nuys Courthouse East
Los Angeles, California
SHIRLEY K. WATKINS
ROUNDTREE 1 VAN NUYS LLLC
DOES 1 THROUGH 50
INFINITI OF VAN NUYS
ROUNDTREE 1 VAN NUYS LLC DBA INFINITI OF VAN NUYS
NSAHLAI EMMANUEL KONGNYUY
ROBINETT TIMOTHY DOUGLAS
BERBERICH DANIEL FRANCIS
PRUDIAN GARY HAROUTOIN
6/4/2019: Order Granting Attorney"s Motion to Be Relieved as Counsel-Civil
6/6/2019: Proof of Service by Mail
6/20/2019: Trial Brief
6/24/2019: Minute Order
3/26/2018: Legacy Document
9/28/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice
1/31/2019: Motion in Limine
2/14/2019: Minute Order
2/14/2019: Motion re:
2/26/2019: Notice of Ruling
at 09:30 AM in Department T, Shirley K. Watkins, Presiding; Mandatory Settlement Conference (MSC) - Not Held - Advanced and VacatedRead MoreRead Less
at 09:30 AM in Department T, Shirley K. Watkins, Presiding; Final Status Conference - HeldRead MoreRead Less
Minute Order ( (Final Status Conference)); Filed by ClerkRead MoreRead Less
Trial Brief; Filed by Ivo Nkwenji (Plaintiff); Julie Nkwenji (Plaintiff)Read MoreRead Less
Witness List; Filed by Ivo Nkwenji (Plaintiff); Julie Nkwenji (Plaintiff)Read MoreRead Less
Proof of Service by Mail; Filed by Roundtree 1 Van Nuys, LLC (Defendant)Read MoreRead Less
at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Hearing on Motion to be Relieved as Counsel - Held - Motion GrantedRead MoreRead Less
Order Granting Attorney's Motion to Be Relieved as Counsel-Civil (for defendant Roundtree 1 Van Nuys)Read MoreRead Less
Minute Order ( (Hearing on Motion to be Relieved as Counsel)); Filed by ClerkRead MoreRead Less
at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Not Held - Taken Off Calendar by PartyRead MoreRead Less
Notice (To Attorneys Re: Continuance of Hearing); Filed by ClerkRead MoreRead Less
Notice Re: Continuance of Hearing and Order; Filed by ClerkRead MoreRead Less
Complaint ( (1st)); Filed by Ivo Nkwenji (Plaintiff); Julie Nkwenji (Plaintiff)Read MoreRead Less
First Amended Complaint; Filed by Ivo Nkwenji (Plaintiff); Julie Nkwenji (Plaintiff)Read MoreRead Less
Summons; Filed by Ivo Nkwenji (Plaintiff); Julie Nkwenji (Plaintiff)Read MoreRead Less
Declaration; Filed by Roundtree 1 Van Nuys, LLC (Defendant)Read MoreRead Less
Civil Case Cover Sheet; Filed by Ivo Nkwenji (Plaintiff); Julie Nkwenji (Plaintiff)Read MoreRead Less
Summons; Filed by nullRead MoreRead Less
Complaint; Filed by Ivo Nkwenji (Plaintiff); Julie Nkwenji (Plaintiff)Read MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
Case Number: LC106415 Hearing Date: August 27, 2020 Dept: T
NKWENJI; et. al.,
ROUNDTREE; et. al.
CASE NO: LC106415
[TENTATIVE] ORDER GRANTING MOTION TO VACATE WITH CONDITIONS
Aug. 27, 2020
[TENTATIVE] ORDER GRANTING MOTION TO VACATE CONTINGENT UPON SWORN DECLARATION OF FAULT UNDER C.C.P. SECTION 473(b) FOR FAILURE TO APPEAR (x3), FAILURE TO FILE JUDGMENT PACKAGE AND FAILURE TO FILE NOTICE OF CHANGE OF ADDRESS. PAYMENT OF PENALTY OF $750 PAYABLE BY MR. NSHLAI TO THE STATE BAR CLIENT SECURITY FUND PER C.C.P. SECTION 473(c)(1)(B)
The court tentatively grants the motion to vacate order of dismissal. The court addresses individually each of the bases for the motion. However, it is contingent upon a sworn declaration pursuant to C.C.P. section 473(b).
1. FAILURE TO APPEAR AT HEARING ON 9/5/19
Mr. Nshlai fails to acknowledge that he did not attend the hearing on 9/5/19. He states in his declaration, “on information and belief, I was present in court on 9/5/19 when the default judgment was entered, although the Court seems to indicate that I was not present in court.” He accepts no fault for his lack of appearance. Indeed, the minutes of the court reflect that not only was he not present but an OSC re sanctions was scheduled against him for 10/7/19 for failure to appear, the OSC re entry of default was continued to 10/7/19 and notice was given to him by the clerk of the court. Notice was sent to Mr. Nshlai to his office on 3250 Wilshire. No change of address had been submitted and this was his address of record. The notice was not returned to the court as undeliverable.
2. FAILURE TO APPEAR AT HEARING ON 10/7/19
Mr. Nshlai acknowledges he was aware of the 10/7/19 hearing. Unfortunately, his declarations under oath give two different versions of why did not attend.
The court notes that in his declaration of 5/7/20, Mr. Nshlai stated that he did not attend the 10/7/19 hearing due to “inadvertence and excusable neglect” because due to “health reasons and unable to talk to the clerk on the morning of 10/7/19 to advise of being sick and unable to appear."
However, Mr. Nshlai stated in his declaration of 8/25/20 that he talked to the clerk on 10/7/19 and told her that “due to a personal emergency” he was unable to attend the hearing. Clearly these two declarations are at odds with each other. In one he was “unable to talk to the clerk” and in the other he “told the clerk” that he could not appear.
In the declaration in which he admits talking to the clerk, he said that she indicated he would received notice of a new court date in the mail. It should be noted that it is the policy in Dept. T that if a lawyer misses a hearing and calls in later that day, the clerk will advise the lawyer of the new hearing date in the call. Regardless, the court assessed sanctions against Mr. Nshlai at the hearing on 10/7/19 and notice was sent to him of the court’s order that same date with a new hearing date for 12/13/19. The notice was sent to his address at 3250 Wilshire. No change of address had been submitted and this was his address of record. The notice was not returned to the court as undeliverable. Notice was also sent to counsel for the defendant.
Regardless, Mr. Nshlai gives no credible explanation for his failure to appear on 10/7/19, instead giving conflicting testimony for his reasons.
3. FAILURE TO APPEAR ON 12/13/19
Mr. Nshlai states that he did not receive actual or constructive notice of the hearing date of 12/13/19, yet the clerk of the court served him with notice and it was not returned to the court as undeliverable. Mr. Nshlai states that because he did not receive notice of the 12/13/19, he did not submit a judgment package. This makes no sense. Submitting the judgment package was his obligation ever since default was entered. Whether or not he had notice of a hearing on 12/13/19 did not affect his obligation to submit a judgment package. He offers no explanation from which the court can discern that he accepts responsibility for his failure to submit the judgment package. Also, he does not state whether he ever looked at the court file online to discern when the next hearing date would be as it would have been noted in the minutes from the 10/7/19 hearing.
Mr. Nshlai was served with the notice on 12/13/19 of the court’s dismissal of the case. It was served to his address of record. Again, Mr. Nshlai states that he did not receive it. This is the third notice to him that he claims he never received (notices of 9/5/19, 10/7/19 and 12/13/19) and he offers no explanation at all for that. Instead he waited for 4 1/2 months before looking at the file online at which time he “realized” that the case had been dismissed without prejudice.
4. MOTION TO VACATE DISMISSAL
Mr. Nshlai states in his declaration of 8/25/20 that on 2/23/20, he reviewed the file and “discovered” the case had been dismissed. In his declaration of 5/7/2, he stated that he did a “diary” review of the file and discovered the dismissal.
Mr. Nshlai indicates that while it was his intention to file a motion to vacate the dismissal, the intervening COVID crisis prevented him from doing so. The court notes that the motion to vacate the dismissal was filed on 5/7/20 while the court was still operating under emergency conditions. There was nothing preventing the filing of the motion between 2/23/20 and 5/7/20 and he offers no real explanation and certainly nothing which would constitute attorney mistake.
5. FAILURE TO FILE NOTICE OF CHANGE OF ADDRESS
Ms. Nshlai filed a change of address for his office on 5/14/20. However, he states in his declaration that he moved his offices on 8/15/19, thereby acknowledging a 9 month delay in notifying the court of his change of address. Although he states that he made arrangements for mail to be forwarded to his new address, it does not go unnoticed that the three notices he claims not to have received (notices of 9/5/19, 10/7/19 and 12/13/19) were all sent to him after he moved offices. He offers no explanation or accept responsibility for his failure to file the required notice of change of address.
Mr. Nshlai has gone to extremes to not take any personal responsibility for his inaction and failures to appear. The court would be inclined, in the interests of justice and so as to not prejudice his client, to allowing Mr. Nshlai to comply with the requirements of C.C.P. section 473(b) in order to obtain mandatory relief: a sworn affidavit attesting to his mistake, inadvertence, surprise or neglect. C.C.P. section 473. What he wants is relief without admitting fault. That remedy is not available to him because he has not acknowledged that anything is his responsibility.
The decision whether to submit a supplemental declaration will be Mr. Nshlai’s as the court is granting him leave to do so.
IT IS SO ORDERED, CLERK TO GIVE NOTICE.