Judge Barbara M. Scheper, Case Number: 21STCV33009, Date: 2024-01-19 Tentative Ruling

Judge: Barbara M. Scheper, Case: 21STCV33009, Date: 2024-01-19 Tentative Ruling

Case Number: 21STCV33009 Hearing Date: January 19, 2024 Dept: 30

Dept. 30

Calendar No.

Ohanian vs. Gardens of Paradise, LLC, et. al., Case No. 21STCV33009

Tentative Ruling re: Defendant’s Motion to Set Aside Default

Defendant Ben and Reef Gardens, Inc. (Defendant) moves to set aside the default entered against it. The motion is denied.

Under Code of Civil Procedure section 473, subdivision (b), “Notwithstanding any other requirements of this section, 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.”

“The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys.” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723.) “Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’ [Citations.] [¶] Moreover, 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.” (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 695.)

Plaintiff served Defendants with the summons and complaint in this action on October 10, 2021. Defendants did not respond, and on December 9, 2021, Plaintiff filed requests for entry of default against each of the four Defendants.

On December 29, 2021, counsel for Defendants, Mainak D’Attaray, contacted counsel for Plaintiff to seek a stipulation setting aside the defaults. (Derbarsegian Decl. ¶ 4.) Though Plaintiff’s counsel agreed and signed the stipulation, it was rejected by the Court on January 4, 2022, for failure to reference Defendant Ben and Reef Gardens, Inc. In the following months, Defendants’ counsel continually delayed in properly revising and filing the stipulation. (Derbarsegian Decl. ¶¶ 5-7.) This includes filing two subsequent stipulations that were also rejected by the Court, on January 24, 2022, and on February 8, 2022.

Plaintiff’s counsel states that defense counsel stopped responding to communications sometime in March 2022, until on August 5, 2022, still with no stipulation properly entered, Defendants filed an ex parte application seeking to set aside the defaults. (Derbarsegian Decl. ¶ 8.) Counsel D’Attaray appeared for Defendants Gardens of Paradise, Yakovi and Waizgen and specially appeared on behalf of moving party herein, Ben and Reef Gardens. The application was denied by the Court.

On August 12, 2022, Defendants filed a “Stipulation to Set Aside Default” (the August 2022 Stipulation). The Court granted the stipulation on August 16 and set aside Defendant’s default.

On December 13, 2022, Plaintiff filed a Motion to Strike Defendants’ Answers and Request for Monetary Sanctions against Defendants, which represented that Defendants’ August 2022 Stipulation was fraudulent. On February 3, 2023, the Court granted Plaintiff’s motion, struck the August 2022 Stipulation, struck Defendants’ Answer, and reinstated the entry of default against Defendants.

Defendant now moves to set aside the default pursuant to Section 473’s mandatory relief provision. However, the Court agrees with Plaintiff that Defendant’s motion is untimely; relief from default is unavailable because Defendant’s motion was filed more than six months after the entry of default against Defendant on December 9, 2021.

Defendant argues that this motion satisfies the six-month time limit because it was filed within six months of the Court’s February 3, 2023 Order. However, the subject of Defendant’s requested relief is the clerk’s entry of default, not the February 2023 Order; entry of default is an act taken by the clerk “upon written application of the plaintiff.” (Code Civ. Proc. § 585, subd. (b).) The Court’s February 2023 Order reinstated the December 9, 2021 default entered by the clerk against Defendant, but did not in itself constitute a new entry of default; one indication of this is the fact that Plaintiff did not re-apply for entry of default (and so the clerk did not re-enter default) against Defendant following the February 2023 Order.

“The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) Because Defendant’s motion is untimely, the Court cannot grant the requested relief.

Furthermore, the Court finds that the mistake proffered by Defendant’s counsel, that he should have checked with counsel to see if the stipulation was in force and effect, does not relate to the entry of default by the clerk at all, and is belied by Plaintiff’s counsel’s declaration and the proceedings in this Court. On August 5, 2022, Defendant’s co-counsel applied ex parte to have the defaults set aside. That application was denied by the Court. The ex parte application clearly demonstrates that counsel knew the defaults were in place and that the stipulation was no longer effective. It was after this hearing that the fraudulent stipulation was submitted to the Court. Under these circumstances, Defendant’s counsel’s declaration in support of this motion is provably false.