Judge Bruce G. Iwasaki, Case Number: 23STCV25973, Date: 2024-08-05 Tentative Ruling

Tentative Ruling: Defendant Russell Ward’s Motion to Set Aside Default is GRANTED; Plaintiff’s Default Judgment Application is GRANTED as to Defendant The Confluence Media, LLC

This is an action arising from the alleged breach of a lease agreement. On October 24, 2023, Plaintiff Gaylord Wior Building (“Plaintiff”) filed a complaint against Defendants Russell Joseph Ward (“Ward”), The Confluence Media, LLC (“Confluence”) (collectively, “Defendants”), and DOES 1-20, inclusive, alleging causes of action for: (1) breach of contract and (2) account stated.

On February 15, 2024, Defendant Ward filed an answer to the complaint on behalf of himself and Defendant Confluence.

On April 11, 2024, the Court held a Case Management Conference at which no appearance was made on behalf of Defendant Ward. (04/11/24 Minute Order.) The Court indicated that although Defendant Ward filed an answer on behalf of himself and Defendant Confluence, “[i]t is required that defendant ‘the Confluence Media, LLC’ be represented by counsel.” (04/11/24 Minute Order.)

The Court set a Case Management Conference for May 22, 2024. (04/11/24 Minute Order.) The Court also set an OSC re: Why Sanctions Should Not Be Imposed Against Defendant Ward for Failure to Appear on April 11, 2024, and such OSC was set for May 22, 2024. (04/11/24 Minute Order.) The Court also set an OSC re: Striking the Answer of Defendant Confluence for Failure to be Represented by Counsel for May 22, 2024. (04/11/24 Minute Order.)

On May 22, 2024, the Court held a Case Management Conference and the respective OSC hearings. (05/22/24 Minute Order.) There was no appearance on behalf Defendants Ward and Confluence. (05/22/24 Minute Order.) Moreover, there was no attorney of record representing Defendant Confluence who is a corporate defendant. (05/22/24 Minute Order.) The Court struck the answer of Defendants and entered default against Defendants. (05/22/24 Minute Order.)

Plaintiff provided Defendants with notice of the Court’s April 11, 2024 and May 22, 2024 minute orders.

On June 18, 2024, Plaintiff submitted a default judgment packet in which Plaintiff requests default judgment against Defendants in the sum of $136,598.80.

On June 25, 2024, Defendant Ward filed and served the instant motion to set aside default, to which Plaintiff filed an opposition on June 28, 2024. No reply brief was filed.

On June 28, 2024, pursuant to a request for dismissal filed by Plaintiff, DOES 1 to 20, inclusive, were dismissed from this action without prejudice.

The Court will address the parties’ respective filings in this one ruling. First, the Court will address Defendant Ward’s motion to set aside default and then the Court will assess the sufficiency of Plaintiff’s default judgment application.

“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).) Relief under CCP § 473(b) is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Ibid.) “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 other proceeding was taken.” (Ibid.) “It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits.” (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 525.)

“Whenever the court grants relief from default, default judgment, or dismissal based on any provision 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.” (Code Civ. Proc., § 473, subd. (c)(1)(A)-(C).)

Plaintiff argues that Defendant Ward’s motion to set aside default should be denied

“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed with the court.” (Code Civ. Proc., § 1005, subd. (b).)

Here, Defendant Ward’s motion was filed and served on June 25, 2024, with a noticed hearing date of July 12, 2024. Thus, the motion to set aside default was only filed and served with 12 court days’ notice as July 4, 2024 was a court holiday. While the Court acknowledges that the motion was filed with less than 16 court days’ notice, Plaintiff does not indicate any prejudice it incurred. The Court will not deny the motion on such grounds. However, the Court reminds Defendant Ward to comply with the requirements of the California Code of Civil Procedure.

In support of the motion to set aside default, Defendant Ward provides a declaration.

Defendant Ward states that, because of an unavoidable medical condition, he was unable to attend the case management conference. (Ward Decl., ¶ 3.) Defendant Ward states that he was severely ill on May 22, 2024. (Ward Decl., ¶ 3.) Defendant Ward indicates that he has had continuous health problems over the past several months that prevented him from making the required appearance at the May 22, 2024 case management conference. (Ward Decl., ¶ 4.) Defendant Ward states that he had a negative reaction to new medications and sought medical attention on May 22, 2024, which interfered with his ability to attend the case management conference. (Ward Decl., ¶ 5.)

While Plaintiff takes issue with the fact that Defendant Ward’s declaration does not indicate why he failed to appear at the April 11, 2024 CMC and argues that his declaration does not support his claim that he sought medical attention on the same day as the OSC that interfered with his ability to attend the hearing, the Court finds such contentions unpersuasive. While his failure to appear at the April 11, 2024 CMC led to the setting of the OSC, it was Defendant Ward’s failure to appear at the May 22, 2024 hearing that ultimately led to the entry of default against him.

Thus, the Court finds that Defendant Ward has presented sufficient evidence that his failure to attend the May 22, 2024 hearing was due to a medical condition. Moreover, the Court reminds Plaintiff that the law prefers to resolve controversies on their merits. (Benjamin v. Dalmo Mfg. Co., supra, 31 Cal.2d 523, 525.)

Plaintiff argues that if the Court is inclined to grant Defendant Ward relief from default, the Court should condition such relief on the payment of a penalty of $1,000.00 to Plaintiff pursuant to CCP § 473(c)(1)(A). The Court denies Plaintiff’s request to impose a penalty against Defendant Ward as he has attested that his failure to attend the May 22, 2024 CMC was due to a medical condition.

Given that the Court has granted Defendant Ward’s motion to set aside default, the Court will address Plaintiff’s default judgment application only as it concerns Defendant Confluence.

Plaintiff seeks default judgment against Defendant Confluence in the sum of $136,598.80.

California Rules of Court, Rule 3.1800 sets forth the requirements for default judgments. In pertinent part, the rule dictates that a party must use form CIV-100 and file the following documents with the clerk: (1) except in unlawful detainer cases, a brief summary of the case identifying the parties and the nature of plaintiff's claim; (2) declarations or other admissible evidence in support of the judgment requested; (3)¿interest computations as necessary; (4) a memorandum of costs and disbursements; (5)¿a declaration of nonmilitary status for each defendant against whom judgment is sought; (6) a proposed form of judgment; (7) a dismissal of all parties against whom judgment is not sought or an application for separate judgment against specified parties under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment; (8)¿exhibits as necessary; and (9)¿a request for attorney fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court, Rule 3.1800(a)(1)-(9).)

The Court has reviewed Plaintiff’s default judgment application and finds that Plaintiff has met requirements of California Rules of Court, Rule 3.1800 to obtain entry of default judgment against Defendant Confluence.

The Court also GRANTS Plaintiff’s Default Judgment Application as to Defendant Confluence.

Department 58