Judge: Andrew E. Cooper, Case: 20CHCP00146, Date: 2023-08-21 Tentative Ruling

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Case Number: 20CHCP00146    Hearing Date: October 10, 2023    Dept: F51

MOTION TO VACATE/SET ASIDE DEFAULT JUDGMENT

Motion Filed: 9/18/23

MOVING PARTIES: Plaintiff/Cross-Defendant Larion Krayzman (“Plaintiff”)

RESPONDING PARTY: Defendant/Cross-Complainant Intellectual Capital Management & Services, Inc. (“Defendant”)

NOTICE: OK 

RELIEF REQUESTED: An order vacating the default judgment entered against Plaintiff on 6/30/23.

TENTATIVE RULING: The motion is granted. Plaintiff’s counsel is ordered to pay compensatory attorney fees and costs to Defendant and/or Defendant’s counsel in the amount of $700.00.

Despite having been previously warned to comply with the “TECHNICAL REQUIREMENTS” set forth in the 5/13/19 First Amended General Order Re Mandatory Electronic Filing for Civil, the parties have again failed to properly bookmark the declarations, exhibits and proofs of service attached to their electronic filings. (5/13/19 First Amended General Order, pp.4:4–5; CRC 3.1110(f)(4); 2/28/23 Minute Order.) The Court imposes sanctions against both parties in the amount of $250.00 for failure to comply with the Order following previous warning. 

BACKGROUND

On 6/18/20, Plaintiff filed his original complaint against nine named defendants, seeking to set aside allegedly fraudulent transfers made to avoid satisfying a judgment in a previous action where a jury awarded Plaintiff a total of $126,000 against defendant L&J Assets, LLC. On 5/26/22 and 9/30/22, Plaintiff filed his first and second amended complaints, respectively. On 2/16/23, Defendant filed its Answer to Plaintiff’s second amended complaint (“SAC”).

On 5/25/23, Defendant filed its cross-complaint against Plaintiff, alleging the following causes of action: (1) Intentional Interference with Contract; (2) Intentional Interference with Economic Advantage; (3) Negligent Interference with Economic Advantage; (4) Abuse of Process; (5) Unfair Business Practice Pursuant to Business and Professions Code Section 17200; and (6) Injunctive Relief.

On 6/30/22, the Court entered default against Plaintiff as to Defendant’s cross-complaint. On 9/18/23, Plaintiff filed the instant motion. On 9/26/23, Defendant filed its opposition. No reply has been filed to date.

ANALYSIS

“The 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 his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc. § 473, subd. (b).)

Here, Plaintiff’s attorney declares under penalty of perjury that “due to a calendaring error in my office, I failed to file the Answer to the Cross-Complaint before the default was entered on June 30, 2023.” (Decl. of Neil C. Evans, ¶ 2.) Counsel further declares that this calendaring error was made due to the effects of illness stemming from a severe intestinal disorder. (Id. at ¶ 3.)

The Court notes that Defendant does not challenge Plaintiff’s contention that his attorney’s error was in fact caused by counsel’s mistake, inadvertence, surprise, or neglect. Based on the foregoing, the Court grants Plaintiff’s motion to set aside the 6/30/23 default entered against him.

Timeliness

Defendant argues that the motion should be denied in its entirety because it was untimely filed and served. (Def.’s Opp. 3:5–9.) “All moving and supporting papers shall be served and filed at least 16 court days before the hearing.” (Code Civ. Proc. § 1005, subd. (b).) Here, the instant motion was filed and served on 9/18/23, 15 court days before the hearing date, accounting for the Court holiday on 9/22/23. Therefore, the Court determines that the motion is untimely.

Notwithstanding the foregoing, the Court exercises its discretion, under Rule 3.110 of the California Rules of Court, to excuse the untimely filed/served motion, particularly where Defendant has made no showing that it was prejudiced by the late filing/service. However, Plaintiff is advised to take note of the filing deadlines under the statute, as future filings made past the statutory deadlines may result in the Court declining to consider the late-filed papers at the hearing.

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Attorney Fees and Costs

“The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc. § 473, subd. (b).)

Here, Defendant requests attorney fees and costs in the amount of $1,750.00, which accounts for five hours of Defendant’s attorney’s time spent reviewing the motion and filing the opposition, at his hourly billing rate of $350.00 per hour. (Decl. of Vincent J. Quigg, ¶ 10.)

In granting the instant motion, the Court finds it reasonable to award Defendant compensatory legal fees and costs in the amount of $700.00.

CONCLUSION

The motion is granted. Plaintiff’s counsel is ordered to pay compensatory attorney fees and costs to Defendant and/or Defendant’s counsel in the amount of $700.00.

The Court imposes sanctions against both parties in the amount of $250.00 for failure to comply with the 5/13/19 First Amended General Order Re Mandatory Electronic Filing for Civil following previous warning.