Case Number: KC063857 Hearing Date: June 23, 2014 Dept: J

Re: CDC Small Business Finance Corp. v. Madell Technology Corp., etc., et al. (KC063857)

MOTION TO SET ASIDE DISMISSAL OF ACTION

Moving Party: Plaintiff CDC Small Business Finance Corp.

Respondent: Defendant Tianxiang Zhou

POS: Moving OK; Opposing served by regular mail contrary to CCP § 1005(c)

This was an action for the enforcement of written unconditional guarantees executed by defendants to induce the extension of credit to a borrower that executed a written promissory note. The Complaint, filed 5/16/12, asserted causes of action for:

1. Breach of Commercial Guaranty Agreement (vs. Madell Tech)
2. Breach of Commercial Guaranty Agreement (vs. Zhou)
3. Breach of Commercial Guaranty Agreement (vs. Bi)

On 8/20/12, defendants Shaolin Bi (“Bi”) and Madell Technology Corporation (“Madell Tech”) filed their answers. On 6/20/12, Defendant Tianxiang Zhou (“Zhou”) filed an answer and cross-complaint against Madell Tech for the following claims:

1. Implied indemnity
2. Comparative indemnity
3. Equitable indemnity
4. Contribution

On 10/25/12, Bi filed a Chapter 7 Bankruptcy, and the case was stayed as to Bi, who eventually obtained a discharge. On 7/09/13, Plaintiff obtained a Judgment against Zhou and Madell Tech, after a summary adjudication motion was granted.

On 4/25/13, Cross-Defendant Madell Tech’s counsel of record substituted-out of the case, leaving the entity without an attorney in this litigation. On 8/05/13, the Court set an “Order to Show Cause Re: Why Cross-Defendant Madell Technology Corporation’s Answer to the Cross-Complaint should not be stricken for failure to be represented by an Attorney…” On 8/16/13, the Court granted the OSC, and ordered Madell Tech’s Answer to the Cross-Complaint stricken. The Court also set for 9/24/13 an Order to Show Cause why Cross-Complainant Zhou should not be sanctioned for failing to comply with CRC Rule 3.110(h).

On 9/24/13, there were no appearances by either party, and the matter was continued to 10/07/13. On that date, counsel for cross-complainant Tim Lin appeared for his client, the OSC was held, and discharged. Counsel advised the court that his client had advised him not to proceed on the pending cross-complaint, which the court ordered dismissed without prejudice, However, the Minute Order of that date states “[a]t the request of counsel for cross-complainant, the court orders the case dismissed without prejudice.” (Minute Order of 10/07/13).

Plaintiff CDC Small Business Finance Corporation (“CDC”) moves to set aside “the dismissal of the Judgments” and of “the case,” and requests that Madell Tech and its “attorney of record” be sanctioned in the amount of $2,000 pursuant to the Court’s inherent powers in equity and under CCP §§ 473 and 128.

It appears clear to the Court that the minute order reflecting a dismissal of “the case” on October 7, 2013 was merely a clerical error. The court orders that said minute order be corrected nunc pro tunc to reflect that only the cross-complaint is ordered dismissed without prejudice, and that the judgment previously entered on the complaint remain in effect.

The request for sanctions it denied.