Judge: Andrew E. Cooper, Case: 23CHCV01855, Date: 2025-01-29 Tentative Ruling

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Case Number: 23CHCV01855    Hearing Date: January 29, 2025    Dept: F51

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MOTION TO VACATE/SET ASIDE ENTRY OF DEFAULT

Motion Filed: 9/30/24

MOVING PARTIES: Defendant/Cross-Defendant Scott Brownstein (“Moving Defendant”)

RESPONDING PARTY: None

NOTICE: NOT OK (fails to acknowledge that there are two entries of default against D, fails to specify which default)

RELIEF REQUESTED: An order vacating the default entered against Moving Defendant.

TENTATIVE RULING: The unopposed motion is granted. Moving Defendant is relieved from the 4/4/24 entry of default against him on Plaintiff’s complaint. Moving Defendant to separately file and serve his proposed answer within 10 days.

BACKGROUND

On 6/26/23, Plaintiffs filed the instant action against three named Defendants, alleging the following causes of action: (1) Breach of Governing Documents; (2) Breach of Fiduciary Duties; (3) Breach of Covenant of Good Faith and Fair Dealing; (4) Breach of Covenant of Quiet Enjoyment; (5) Negligence; (6) Intentional Infliction of Emotional Distress; and (7) Negligent Infliction of Emotional Distress.

On 12/11/23, Plaintiffs amended their complaint to name Moving Defendant as previously unnamed Doe defendant 2. On 12/22/23, Moving Defendant was personally served with the complaint. (12/29/23 POS.)

On 12/26/23, nonmoving defendant/cross-complainant Sustainable Building & Design, Inc. filed its cross-complaint, alleging against Moving Defendant and nonmoving defendant/cross-defendant David A. Moran the following causes of action: (1) Implied Equitable Indemnity; (2) Partial Equitable Indemnity; (3) Contribution; (4) Breach of Fiduciary Duty; and (5) Declaratory Relief. On 1/22/24, Moving Defendant was personally served with the cross-complaint. (1/25/24 POS.)

On 3/22/24, default was entered against Moving Defendant on the cross-complaint. On 4/4/24, default was entered against Moving Defendant on the complaint. On 9/30/24, Moving Defendant filed the instant motion. No opposition has been filed to date.

ANALYSIS

“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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc. § 473, subd. (b).)

Here, the Court notes that in the motion, Moving Defendant is unclear as to which default he seeks to vacate. While the body of the motion refers to Moving Defendant as “cross-defendant,” the proposed answer purports to answer Plaintiffs’ complaint, rather than the cross-complaint. In any event, to the extent that Moving Defendant seeks to set aside the 3/22/24 entry of default against him on the cross-complaint, the instant motion motion is untimely. (Code Civ. Proc. § 473, subd. (b).) Therefore, the Court determines that the instant motion seeks to vacate only the 4/4/24 entry of default against him on Plaintiffs’ complaint.

Moving Defendant declares that he “was aware of the lawsuit in this matter; however, upon review I understood it did not relate to myself personally. … I noted the parties listed in the caption and not until entry of default and consultation with my attorney did I understand that myself personally, my business partner David Moran, or the corporation Mr. Moran and I have a stock ownership in, Four Square Restoration, Inc. had been named as fictitious defendants in this action and allegedly served with notice of this legal action.” (Decl. of Scott Brownstein ¶ 2.)

The Court notes that that no oppositions have been filed against the instant motion, and that “because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) Based on the foregoing, the Court finds that Moving Defendant is entitled to relief from the default entered against him on 4/4/24 on Plaintiff’s complaint. Accordingly, the Court exercises its discretion to grant the unopposed motion pursuant to Code of Civil Procedure section 473, subdivision (b).

CONCLUSION

The unopposed motion is granted. Moving Defendant is relieved from the 4/4/24 entry of default against him on Plaintiff’s complaint. Moving Defendant to separately file and serve his proposed answer within 10 days.