Judge: Andrew E. Cooper, Case: 22CHCV00253, Date: 2023-05-11 Tentative Ruling

Case Number: 22CHCV00253    Hearing Date: May 11, 2023    Dept: F51

Dept. F-51

Date: 5/11/23 

Case #22CHCV00253

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MOTION TO VACATE/SET ASIDE DEFAULT JUDGMENT

Motion Filed: 2/17/23

MOVING PARTIES: Defendant Todd K. Bernstein (“Defendant”)

RESPONDING PARTY: Plaintiff Dale Kim (“Plaintiff”)

NOTICE: OK 

RELIEF REQUESTED: An order vacating the default judgment entered against Defendant on 9/29/22. Defendant also seeks the removal of any and all Abstracts of Judgment/Judgment Liens that Plaintiff filed with county recorders and the State of California.

TENTATIVE RULING: The motion is Granted. The Court imposes a penalty of $800.00 against Defendant’s counsel. 

REQUESTS FOR JUDICIAL NOTICE:

Defendant’s request for judicial notice is granted.

Plaintiff’s request for judicial notice is granted.

BACKGROUND

On 5/5/21, defendants Todd and Stacye Bernstein (collectively, “Defendants”) allegedly executed a $26,700 Note in favor of Plaintiff. The agreement required $1,000 monthly payments with a final payment of $700 due on 10/1/23. Plaintiff alleges Defendants defaulted, thereby rendering the entire balance due and payable.

On 4/14/22, Plaintiff filed his complaint against Defendants for Breach of Promissory Note. On 5/31/22, the clerk entered defaults against both Defendants. On 6/28/22, the Court granted default judgment against both Defendants.

On 8/25/22, the Court granted Defendant’s motion to set aside the entry of default and default judgment, denied the motion as to Stacye Bernstein, and ordered Defendant to file his answer within 10 days. On 9/12/22, the clerk again entered default against Defendant, and a default judgment was entered against Defendant on 9/14/22. On 9/16/22, Defendant filed his Answer.

On 9/29/22, the Court again granted default judgments against Defendants. On 2/17/23, Defendant filed the instant motion. On 4/26/23, Plaintiff filed his opposition. On 5/3/23, Defendant filed his reply.

ANALYSIS

Surprise

Defendant requests relief from the default judgment against him, pursuant to Code of Civil Procedure section 473, subdivision (b). Under the statute, “the court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc. § 473, subd. (b).) “The term ‘surprise,’ as used in section 473, refers to some condition or situation in which a party . . . is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal. App. 4th 600, 611 [internal quotations omitted].)

Here, Defendant argues that he was “surprised” because he was not given notice of the Court’s 8/25/22 Order setting aside default against Defendant and ordering him to file and serve his answer within 10 days. (Def.’s Mot. 6:9–11.) Defendant’s counsel declares that following the 8/25/22 hearing, the court took the matter under submission, and later issued a Minute Order, the certificate of mailing for which indicates service on Plaintiff’s counsel only. (Decl. of John V. Tamborelli, ¶ 3.)  As a result, Defendant failed to file his Answer within the time set forth by the Court’s Order, and Plaintiff successfully sought another entry of default and default judgment against Defendant.  The Court reviewed the Certificate of Mailing and notes the absence of Defendants’ counsel address and name.  Furthermore, the Court reviewed the Court’s electronic file and notes the same absence in the file.

Plaintiff argues in opposition that Defendant’s conduct does not constitute “mistake, inadvertence, surprise, or excusable neglect” warranting relief, and instead results from Defendant’s own negligence. (Pl.’s Opp., 4:1–5:1.) Plaintiff asserts that “the fact that this Court took the tentative ruling ‘under submission’ on August 25, 2022, obviates the ‘surprise’ element entirely as JT knew that a final ruling is forthcoming. JT had every opportunity to follow up with this Court as to whether or not this Court sent out a final minute order.” (Id. at 4:11–14.) “JT could and should have filed said answer regardless of the final ruling.” (Id. at 4:24–25.)

Furthermore, Plaintiff argues that he would be “substantially prejudiced” should the Court grant the instant motion, “as so much time and money would be wasted and further money would be spent to undo all recorded judgments in four counties and a lien with Secretary of State of California.” (Id. at 6:20–22.)

The Court accepts Defendant’s contention that he did not receive notice of the 8/25/22 ruling due to the clerk’s clerical error.  Defendant appears to have discovered the clerical error over three weeks after the hearing, as evidenced by the filing of his Answer on 9/16/22.  Indeed, the Defendant could have and should have followed up on the Court’s final ruling after the 8/25/22 hearing before eventually filing an Answer over three weeks later. Such an inquiry would have prevented the Plaintiff from expending time and money on the filing of the default and related work. 

PENALTY

Code of Civil Procedure section 473, subdivision (c) states:

" (1) Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following:

(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.

(C) Grant other relief as is appropriate.

The Court finds that Plaintiffs are entitled to relief pursuant to this section to alleviate prejudice based on the expenditure of time and money. 

The Court imposes a penalty of $900.00 in favor of Plaintiff against Defendant. 

CONCLUSION

The Court has balanced the fact of the clerical error, the lack of diligence on the part of the Defendant and the prejudice to the Plaintiff in its analysis.  For the reasons set forth above, the Defendant’s motion is GRANTED.

The defaults entered on September 29, 2022 are vacated. 

The parties are to meet and confer within fifteen days regarding settlement of this single cause of action case.  Counsel is reminded of the following:

Knowledgeable, well-prepared lawyers who cooperate with each other and the Court streamline the litigation process, thereby conserving client and judicial resources. Therefore, the Court expects and requires the highest degree of professionalism from counsel appearing in this Department.  Uncivil or unprofessional behavior will not be tolerated.

“[I]t is vital to the integrity of our adversary legal process that attorneys strive to maintain the highest standards of ethics, civility, and professionalism in the practice of law.’ (In re S.C. (2006) 138 Cal.App.4th396, 412)