Judge: David B. Gelfound, Case: 24CHCV02716, Date: 2025-02-21 Tentative Ruling

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Case Number: 24CHCV02716    Hearing Date: February 21, 2025    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO SET ASIDE AND VACATE DEFAULT

Motion filed: 11/15/24

MOVING PARTY: Defendants Vaha Alexan Moughalian and Talar Moughalian

RESPONDING PARTY: None.

NOTICE: OK.

RELIEF REQUESTED: An order of this Court vacating the Default entered on September 30, 2024.

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

This action arises from personal injuries Plaintiff sustained when she was allegedly attacked by Defendants’ dog on June 20, 2024.

On July 30, 2024, Plaintiff Juana Maria (“Plaintiff” or “Maria”) filed a Complaint against Defendants Vaha Alexan Moughalian and Talar Moughalian (collectively,  “Defendants”), alleging the following causes of action: (1) Negligence, (2) Negligence Per Se (Violating Civil Code § 3342), (3) Negligence Per Se (Violating Municipal Authority), (4) Strict Liability, and (5) Negligence in the Control and Maintenance of Real Property.

On September 30, 2024, Plaintiff filed a Request for Entry of Default against Defendants, which was entered by the Court Clerk on the same day. Subsequently, on November 15, 2024, the Court granted a Default Judgment in favor of Plaintiff against Defendants.

On the same day, November 15, 2024, Defendants filed the instant Motion to Set Aside and Vacate Default (the “Motion”).

No Opposition or Reply papers have been received by the Court.

ANALYSIS

Under Code of Civil Procedure section 473, subdivision (b), a court may “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 this section must be brought “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).) 

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) The mandatory provision states in relevant part: 

“[W]henever 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.” 

(Code Civ. Proc., § 473, subd. (b).)

“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. [Citation.]” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723.)

“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.)

¿ 

A.    Motion to Set Aside and Vacate Default

Defendants’ counsel, George Besnilian (“Besnilian”), attests that the default was entered as a result of his misunderstanding and failure to file the Answer. (Besnilian Decl., ¶ 2.) Specifically, Besnilian states that “[m]y clients were served in August 2024. My office was retained in early September at which time I reached out to Plaintiff’s counsel requesting an extension to Answer the lawsuit due to the fact that I was out of the country. We were granted an extension to September 20, 2024. We were then given another extension with a deadline of September 30, 2024. We emailed an Answer to Plaintiff’s counsel but it was after the Request for Default was already filed and entered on said day. Plaintiff’s counsel received the email after he had already filed the Default. I errored in the late Answer on September 30,2024.”

The Court notes that Defendants’ counsel submitted a sworn declaration attesting to his mistake, inadvertence, surprise, or neglect. Additionally, Defendants’ Motion was filed on November 15, 2024 – the same day as the entry of the judgment – thereby satisfying the 6 months deadline under Code of Civil Procedure section 473, subdivision (b).

Accordingly, the mandatory relief under Code of Civil Procedure section 473, subdivision (b), applies in the present case, requiring that the default and the default judgment be set aside and vacated.

Moreover, “[t]he 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 finds that the total and reasonable amount of Plaintiff’s incurred costs totaling $573.34 in connection with the preparation of the Request for Entry of Default and Request for Entry of Default Judgment. This amount includes $435.00 in filing fees and $138.34 in service costs. (See 11/14/24 Pl.’s Memo. of Costs.)

Accordingly, the Motion is GRANTED. The Court SETS ASIDE and VACATES the default entered on September 30, 2024, and the default judgment entered on November 15, 2024, as to Defendants.

CONCLUSION

The Motion to Set Aside/Vacate Default, filed by Defendants Vaha Alexan Moughalian and Talar Moughalian, is GRANTED. The Court SETS ASIDE and VACATES the default entered on September 30, 2024, and the default judgment entered on November 15, 2024, as to Defendants.

Defendant Vaha Alexan Moughalian and Talar Moughalian are ordered to file Answer to the Complaint within 10 days.

Defendants’ counsel, George Gary Besnilian, is ordered to pay $573.34 in compensatory fees to Plaintiff’s attorney of record within 10 days.

Moving party is to give notice.