Judge: David B. Gelfound, Case: 21CHCV00316, Date: 2024-04-18 Tentative Ruling

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Case Number: 21CHCV00316    Hearing Date: April 18, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-49

MOTION TO SET ASIDE AND VACATE DEFAULT

Motion filed: 1/22/24

MOVING PARTY: Defendant Eliezer Appel (“Appel” or the “Moving Defendant”)

RESPONDING PARTY: None

NOTICE: ok¿¿¿ 

RELIEF REQUESTED: An order of this Court vacating the Default entered on August 18, 2023, against Defendant Appel.

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

On April 23, 2021, Plaintiff Lucy Holdings, LLC (“Plaintiff” or “Lucy Holdings”) filed its original complaint in this action alleging a cause of action for declaratory relief/quiet title against Defendants Krupe Industries, Inc. (“Krupe”) and Witkin & Associates, LLC (“Witkin”), alleging (1) Declaratory Relief/Quiet Title, and (2) Fraud. Subsequently, on August 2, 2021, the Department F-51 court overruled Defendant Krupe’s demurrer as to the declaratory relief/quiet title cause of action and sustained the demurrer, with leave to amend, as to the fraud cause of action.

On August 21, 2021, Plaintiff filed its First Amended Complaint (“FAC”), asserting a single cause of action for declaratory relief/quiet title. Subsequently, on November 5, 2021, the Department F-51 court overruled demurrer filed by Krupe and Witkin to Plaintiff’s FAC. (11/5/21 Minute Order.)

On November 7, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendants Appel, Oscar Broederlow, Krupe, Roshmore Development Inc., Cochran Inc., Witkin, and Does 1-10, alleging (1) Declaratory Relief/Quiet Title, (2) Slander of Title, and (3) Conspiracy to Slander Title. Subsequently, on March 9, 2023, the Department F-51 court overruled Krupe’s demurrer to Plaintiff’s SAC. (3/9/23 Minute Order.) Following this, Witkin and Krupe filed each’s Answer to SAC on March 10 and March 20, 2023, respectively.

On June 21, 2023, the Department F-51 court overruled Defendant Appel’s demurrer, ordering Appel to file an answer to the SAC within 30 days. (6/21/23 Minute Order.)

On August 18, 2023, Plaintiff filed his Request for Entry of Default against Appel, which was entered by the Department F-51 court on the same day.

On January 22, 2024, Defendant Appel filed the instant Motion to Set Aside/Vacate Defaulted entered on August 18, 2023.

No opposing papers have been received by the Court.

ANALYSIS

Code of Civil Procedure section 473 subdivision (b) provides, in pertinent part, 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. 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 .... No affidavit or declaration of merits shall be required of the moving party. 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 court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.”

A.    Motion to Set Aside/Vacate

Mr. Craig L. Chisvin (“Chisvin”), the attorney of record for the Moving Defendant, attests that the default was entered as a result of him mistakenly overlooking the due date for filing responsive pleading to Plaintiff’s SAC. (Chisvin Decl., ¶ 2.) Since the Motion was made on January 22, 2024, less than six months after the entry of the default on August 18, 2023, and is accompanied by attorney Chisvin’s declaration of fault, relief is mandatory under Code of Civil Procedure section 473 subdivision (b).

“The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc., § 473, subd. (b).) “The court may properly order payment of costs or attorney fees to the adverse party as compensation for loss or expense occasioned by the granting of the section 473 motion.”¿ (Jade K. v. Viguri (1989) 210 Cal.App.3d 1459, 1474.)

Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work in preparing the Request for Entry of Default form is $900.00, calculated at a reasonable hourly rate of $450 for 2 hours reasonably spent.

Appel is ordered to separately file his Answer and Cross-Complaint. The Court notes that the proposed Answer and Cross-Complaint, attached to the Motion, refer to an incorrect case number. Additionally, it is the party’s responsibility to correctly identify the judicial department and judicial officer. The foregoing errors are to be corrected in the Answer and Cross-Complaint to be filed with the Court.

Accordingly, the Court SETS ASIDE and VACATES the default entered on August 18, 2023, as to Defendant Eliezer Appel.

CONCLUSION

Defendant Eliezer Appel’s Motion to Set Aside/Vacate Default is GRANTED.

Defendant Eliezer Appel is ordered to file his Answer and Cross-Complaint within 10 days.

Defendant’s attorney of record, Mr. Craig L. Chisvin, is ordered to pay $900.00 compensatory fees to Plaintiff within 10 days.

Moving party is to give notice.