Judge Christian R. Gullon, Case Number: 23PSCV00394, Date: 2024-04-23 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV00394, Date: 2024-04-23 Tentative Ruling

DEFENDANTS EMAN TANAGHO AND MICHAEL TANAGHO’S NOTICE OF MOTION AND MOTION TO VACATE AND SET ASIDE DEFAULTS is GRANTED, because the court must set aside the default entered due to Defense Counsel’s error.

This case arises from an attempt to collect a judgment. Plaintiff OR Construction, Inc. alleges the following against Defendants Eman Tanagho (“Eman”) and Michael Tanagho (“Michael”) (collectively, “Defendants”): On March 23, 2021, Plaintiff received a final judgment in case no. 19PSCV01164 entitled OR CONSTRUCTION, INC. vs EMAN TANAGHO.[1] However, to prevent Plaintiff’s from collecting their claim, Eman transferred certain real property to her children, Jamil and Michael.[2]

On February 9, 2023, Plaintiff filed suit asserting the following causes of action (COAs):

On November 22, 2023, the proof of public was filed indicating that the summons was issued in the San Gabriel Valley Tribune on 11/01/23, 11/08/23, 11/15/23, and 11/22/23.[3]

On March 19, 2024, Defendants filed the instant motion. (An ‘answer’ has been ‘filed’ with the court.)

On April 11, 2024, Plaintiff filed a ‘Declaration Of Stanley Kip Southwick In Response To Motion To Vacate And Set Aside Defaults’ (“Opposition”).

Defendants make this application pursuant to C.C.P. §473(b) on the grounds of mistake, inadvertence, surprise, or excusable neglect. (Motion p. 2:2-3; see also Motion p. 8:1-5.)

In turn, CCP section 473 subdivision (b) states that: “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 . . . .”

Defendants move to set aside the default because of their attorney Counsel Jing Wang’s excusable neglect. (Motion p. 9:4-9.)

More specifically, Defense Counsel explains that on 1/11/24, she sent an email to Plaintiff’s Counsel with a new settlement offer[4] and a request to extend the time to file a responsive pleading to 1/19/24, but that Plaintiff’s Counsel did not respond that email and that in the interim, “she became side-tracked with the trial preparation in her other case that was scheduled to start trial on January 30, 2024.” (Motion p. 8:17-19.)

According to the appellate court in Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1128, “[a] party seeking relief under section 473 on the grounds of excusable neglect bears the burden of demonstrating that the neglect was excusable in order to secure relief. [internal citation omitted.] The test of whether neglect was excusable is whether a ‘reasonably prudent person’ under the same or similar circumstances might have made the same error.”

Here, absent a meaningful analysis provided by Defense Counsel, it is unclear whether an attorney’s preoccupation with another case is what a reasonable attorney would have done. If the court is to subscribe to Defense Counsel’s notion that an attorney forgetting about a case is reasonable, that would obviate the very purpose of an attorney which is to advocate for their clients, which inherently requires performing legal services in a timely manner.

Notwithstanding, as the basis of the motion is that Counsel is at fault, it is unclear why Defense Counsel is seeking relief under the discretionary provision instead of the mandatory provision of CCP section 473(b).[5] Consequently, as “it is not what a paper is named, but what it is that fixes its character,” (Parnham v. Parnham (1939) 32 Cal.App.2d 93, 96), the court turns to the mandatory provision of CCP section 473(b).

The mandatory relief provisions of Code of Civil Procedure section 473, subdivision (b) apply specifically to defaults, default judgments, and dismissals, and provide in relevant part:

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,[6] 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 . . . or (2) resulting default judgment or dismissal entered . . . . (emphasis and underline added.)

Case law instructs that so long as counsel is willing to fall on their sword, relief is mandatory. (See Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1210.) “Section 473’s provision for mandatory relief from a dismissal based upon a declaration of attorney error does not require a determination the error was excusable. It applies even when the attorney has no excuse.” (Ibid, emphasis added; see also SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516-517 [“Relief is mandatory when a complying affidavit is filed, even if the attorney's neglect was inexcusable.”].

Effectively, as Counsel has filed a declaration explaining that the default was entered due to her oversight, no other explanation, including as to the parties’ communications,[7] is needed.

To the extent that Plaintiff opposes the motion, it does not appear to dispute that the default should be set aside. Rather, Plaintiff asks for monetary sanction in the amount of $1,000 to be imposed upon Defendants and/or Counsel Wang pursuant to CCP section 473(c)(1)(A) for Defendants evading service.

(c)(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.

However, section 473(b)(2) expressly carves out an exception to the foregoing should the default have been entered due to an attorney’s mistake, inadvertence, surprise, or neglect. Thus, imposition of monetary sanctions is precluded by statute based upon the facts presented in this motion.[8]

[1] A notice of related case has not been filed. (See Cal. Rules of Court Rule 3.300, subd. (b) [“Whenever a party in a civil action knows or learns that the action or proceeding is related to another action or proceeding pending, dismissed, or disposed of by judgment in any state or federal court in California, the party must serve and file a Notice of Related Case.”].)

[2] Jamil passed away and his undivided, half interest in the real property was passed to Michael as a surviving joint tenant.

[3] Thus, service was statutorily compliant.

[4] The judgment in the 19PSCV01164 case was for $48,664.42. Based upon the court’s understanding, Defendants’ settlement offer was for delivery of 2008 Toyota Sienna Passenger Van and $3,000.00. Thus, while Defense Counsel may attest that she was “very optimistic” that a settlement could be reached (Motion p. 5:4-6), the court is somewhat unpersuaded as the cost of a used 2008 vehicle and $3,000 dramatically falls short of the judgment.

[5] CCP section 473, subdivision (b) contains two distinct provisions for relief from default. (Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 991.

[6] As the motion was filed about two months after entry of default, the motion is timely.

[7] According to the motion and Counsel Wang’s declaration, the parties were attempting to settle the matter. Counsel Wang explains that she was communicating with Plaintiff’s attorney, Ryan Southwick, who stated that he would relay the settlement offer to his client. (Motion p. 11.) Part of the offers included a request to file an answer, which was granted by Plaintiff, requiring an answer by 1/19/24. Counsel, however, due to trial preparation, overlooked the date.

[8] Even if the court were to grant the motion pursuant to the discretion provision of CCP section 473, the court would deny the request for sanctions against Defendants and/or Defense Counsel Wang due to numerous attempts to settle the matter and communications between the parties. (See Motion, Ex. A-J.) That said, in opposition, Plaintiff’s Counsel Stanley Kip Southwick contends that Ryan Southwick is a legal assistant. But that is inapposite as Plaintiff’s emails with Plaintiff’s firm is to Skip Southwick and Ryan is merely CC’d to the emails; the emails sent from Plaintiff’s firm are in fact signed by Stanley.