Puneh Kitchen v. Tesla Energy Operations CA2/4

Opinion

Filed 8/24/26 Puneh Kitchen v. Tesla Energy Operations CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

PUNEH KITCHEN et al., B345469 (Los Angeles County Plaintiffs and Respondents, Super. Ct. No. 22STCV17683)

v.

TESLA ENERGY OPERATIONS, LLC,

Defendant and Appellant.

APPEAL from order of the Superior Court of the County of Los Angeles, Lisa R. Jaskol, Judge. Affirmed. Lewis Brisbois Bisgaard & Smith, Tracy D. Forbath and Daniel Velladao; Sidran Law Corp. and David R. Sidran for Defendant and Appellant. Lew-Stevens and Steven B. Stevens; Stolpman Law Group and Thomas G. Stolpman for Plaintiffs and Respondents. Defendant Tesla Energy Operations, LLC (Tesla) appeals from the trial court’s order granting the motion of plaintiffs Puneh Kitchen and Jonathan Kitchen (individually and as guardian ad litem for Jesse Kitchen) to set aside the dismissal ordered after their counsel failed to appear for trial. (Code Civ. Proc. § 473, subd. (b).1) Tesla does not provide a basis for disturbing the trial court’s finding that the case was dismissed due to the mistake, inadvertence, or neglect of plaintiffs’ counsel. We affirm.

PROCEDURAL BACKGROUND2 In 2022, plaintiffs filed a complaint alleging a Tesla employee negligently caused a fire while installing equipment at their home. The trial date was continued many times. Some continuances were requested by stipulation to allow completion of discovery. Others were ordered due to delays caused by plaintiffs’ counsel. Eventually, trial was set for October 21, 2024, at 8:30 a.m. Plaintiff’s counsel, Thomas Stolpman, was not present when the case was called for trial. At 9:05 a.m., Tesla made an oral motion to dismiss the case pursuant to section 581, subdivision (b)(5) (section 581(b)(5)). The trial court granted it. The court noted Stolpman was more than one hour late and unprepared to proceed when the case had been called for trial 1 Undesignated statutory references in this opinion are to the Code of Civil Procedure. 2 We do not recite the entire factual and procedural background, as the parties are familiar with the facts of the case and its history. (Cal. Stds. Jud. Admin., § 8.1; People v. Garcia (2002) 97 Cal.App.4th 847, 851.)

2 earlier in the month. The court admonished him then that future tardiness or nonappearance would result in dismissal of the case. Subsequently, the court entered a judgment of dismissal without prejudice. Plaintiffs moved to set aside the dismissal order and judgment pursuant to section 473, subdivision (b) (section 473(b)). Stolpman declared his tardiness was due to his mistake, inadvertence, or excusable neglect. He attested he lived in the Santa Ynez Valley, about 130 miles from the courthouse. He chose to drive to court from home on the first day of trial to avoid the expense of hiring an overnight caregiver to stay with his wife, who was wheelchair-bound. He woke at 4:15 a.m., had computer issues while working on a jury instruction, and lost track of time. Consequently, he left about 15 minutes later than planned. Stolpman then encountered stopped traffic due to a brush fire in Camarillo and a lengthy delay at the courthouse entrance because the only security guard was attending to a person in a wheelchair. He arrived at the courtroom around 9:41 a.m. In its opposition, Tesla argued that section 473(b)’s mandatory relief provision did not apply because the judgment of dismissal was not tantamount to a default judgment. It also argued the dismissal resulted from a strategic decision to delay trial. Tesla described actions by Stolpman that previously delayed trial. These included his lack of cooperation in preparing joint trial filings, his failure to appear at a final status conference, his late appearance at a prior trial call and unreadiness to proceed, and his filing of a peremptory challenge to the trial judge assigned on the day trial was set to begin.

3 The trial court indicated that it considered Tesla’s evidence concerning Stolpman’s tardy preparation of trial documents, lateness, and absences and found there was insufficient evidence to find that his failure to appear on October 21, 2024, was part of a strategy to delay the trial. The trial court found that the dismissal fell within section 473(b)’s mandatory relief provision and granted plaintiffs’ motion. Tesla appealed.

DISCUSSION A. Governing Law Section 473(b) provides for both discretionary and mandatory relief from a dismissal caused by an attorney under certain circumstances. (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302 (Pagnini).) The mandatory provision provides: “[T]he 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 . . . resulting . . . dismissal entered against the attorney’s client, unless the court finds that the . . . dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (§ 473(b).) This provision promotes the determination of actions on their merits. It seeks to relieve innocent clients of the burden of the attorneys’ fault, to impose the burden on the erring attorney, and to avoid the precipitation of additional litigation in the form of malpractice suits. (Pagnini, supra, 28 Cal.App.5th at p. 302.) The range of attorney conduct for which relief can be granted pursuant to the mandatory provision includes inexcusable neglect. (Ibid.)

4 If the prerequisites for applying the mandatory provision exist, the trial court lacks discretion to refuse relief. (Talbott v. Ghadimi (2025) 109 Cal.App.5th 967, 977.) Whether section 473(b)’s mandatory provision requirements have been satisfied is a question we review for substantial evidence where the evidence is disputed and de novo where it is undisputed. (Rodriguez v. WNT, Inc. (2025) 116 Cal.App.5th 791, 803.)

B. The Trial Court Did Not Err On appeal, Tesla asserts that plaintiffs were not entitled to mandatory relief under section 473(b) because no “dismissal” was entered against them within the meaning of the statute. Further, it contends the dismissal did not result from counsel’s mistake, inadvertence, or neglect but rather from a strategic decision to delay trial. In the past, this division has stated that the mandatory provision of section 473(b) applies where a dismissal occurs under circumstances “analogous to a default”—that is, when a plaintiff loses the opportunity to litigate the merits of a claim due to their counsel’s failure to act. (Yeap v. Leake (1997) 60 Cal.App.4th 591, 600–601 [mandatory relief provision applied where plaintiff’s counsel failed to appear for arbitration].) Other courts have adopted a narrower definition, construing a “dismissal” as the removal by a court of an application for judicial relief. (English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 148 [judgment for defendant after plaintiff’s counsel failed to substantively oppose summary judgment motion was not a dismissal warranting mandatory relief].) The dismissal order in this case satisfied even the narrower definition. Tesla moved to dismiss the case pursuant to 5 section 581(b)(5). It provides that “[a]n action may be dismissed . . . ¶ . . . ¶ [b]y the court, without prejudice, when either party fails to appear on the trial and the other party appears and asks for dismissal.” Because granting Tesla’s motion removed the complaint from consideration and prevented litigation of the merits, the order was a “dismissal” within the meaning of section 473(b). Tesla attempts to avoid this outcome by asserting that dismissals warranting mandatory relief are limited to those ordered after a plaintiff fails to appear in opposition to a dismissal motion, citing Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809. (See id. at p. 1821 [“a dismissal may be entered where a plaintiff fails to appear in opposition to a dismissal motion [under section 583.410], and relief is afforded where that failure to appear is the fault of counsel”].) According to Tesla, the dismissal resulted not from plaintiffs’ failure to oppose its motion but because the court “r[an] out of patience” with Stolpman’s “repeated pattern of tardiness and absence from essential court dates.” Tesla contends the case would have been dismissed even if plaintiffs had opposed the dismissal motion. Tesla’s argument is not supported by the record. Tesla moved to dismiss the case pursuant to section 581(b)(5), which applies when a party fails to appear for trial and requires no previous delays or absences. Plaintiffs plainly failed to oppose the dismissal motion because Stolpman was not present. The absence of their counsel prevented plaintiffs from arguing, for example, whether dismissal or a less drastic sanction was warranted. (See Link v. Cater (1998) 60 Cal.App.4th 1315, 1325.) When it granted the motion, the court specifically referred to section 581(b)(5) as the basis for dismissal.

6 We are similarly unpersuaded by Tesla’s argument that mandatory relief was unavailable because the dismissal resulted from a strategic decision made by Stolpman. Tesla asserts that “[d]esigning conduct that leads to a dismissal is not akin to a default” and cannot be the basis of relief under section 473(b). (Pagarigan v. Aetna U.S. Healthcare of California, Inc. (2007) 158 Cal.App.4th 38, 46 [affirming denial of section 473(b) relief where trial court found plaintiff’s failure to timely amend their complaint was knowing and intentional conduct].) Tesla argues that its attorneys, who lived in other counties, rented hotel rooms close to court so they would not be late. Stolpman’s failure to do the same, it argues, was a decision that brought his conduct outside the bounds of mistake, inadvertence, or neglect. Here, substantial evidence supported the court’s implicit finding that the dismissal was caused by counsel’s mistake, inadvertence, or neglect. Stolpman attested that his tardiness for trial and consequent failure to oppose the dismissal motion resulted from his decision to make a lengthy commute for reasons related to caregiving, a late departure, and other circumstances beyond his control such as a fire. We have no basis to assess his credibility differently than the trial court or disturb its factual finding regarding causation on appeal. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622–623.)

7 DISPOSITION The trial court’s order is affirmed. Plaintiffs shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MORI, J. We concur:

ZUKIN, P. J.

TAMZARIAN, J.