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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.
8
