Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendants Aram G. Construction and Aram Madzhinyan 

 

RESPONDING PARTY: Plaintiff Leon Krous Drilling, Inc. 

 

 

BACKGROUND 

 

Treetop Development owns real property located at 9650 Cedarbrook Drive, Beverly Hills, California (“the Property”).  Treetop contracted with Aram Madzhinyan and Aram G. Construction, Inc. (collectively “Defendants”), to perform concrete work on the Property.  The Aram Defendants in turn contracted with Plaintiff Leon Krous Drilling, Inc. (“Krous”) to perform drilling and related services at the Property.   

Krous sued Treetop and the Aram Defendants, claiming they failed to pay him for work done on the Property.  Krous’ complaint alleges claims for (1) breach of contract, (2) breach of implied in fact contract, (3) unjust enrichment, (4) fraud, (5) quantum meruit, (6) foreclosure of mechanics’ lien and (7) recovery on contractor’s license bond. 

Treetop cross-claimed against Defendants, claiming they concealed the fact that their contractors’ licenses were suspended; they failed to perform work they were hired to do; they failed to pay subcontractors they retained to do the work, and they failed to return monies advanced to them for work they did not perform.  Treetop’s cross-complaint alleges claims for (1) fraud and deceit, (2) negligent misrepresentation, (3) negligence, (4) conversion, (5) violation of Bus. & Prof. Code section 17200, (6) implied indemnity, (7) comparative indemnity, (8) declaratory relief, (9) equitable indemnity, (10) contribution and (11) demand for payment on contractor’s bond.     

This hearing is on Defendants’ motions to set aside entry of default taken against them by Treetop on its cross-complaint.  The clerk of the court entered default against Defendants on July 27, 2022.  Defendants claim they never received any request for entry of default, and accordingly, they should be relieved of its entry.  There is no opposition.       

LEGAL STANDARD 

Code Civ. Proc. §473, subd. (b)¿provides for two distinct types of relief from a default -- commonly differentiated as “discretionary” and “mandatory.”  “Under the¿discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or¿excusable neglect,” the court has discretion to allow relief from default.  Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court must vacate any ‘resulting default judgment or dismissal entered.’”  (Leader v. Health Industries of America, Inc.¿(2001) 89 Cal.App.4th 603, 615-616.)¿  

Applications seeking relief under the mandatory provision of¿§473¿must be “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc. §473, subd. (b).)  The mandatory provision further adds that “whenever relief is granted based on an attorney’s affidavit of fault [the court shall] direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Id.)   

The application for relief must be made no more than six months after the judgment, dismissal, order, or proceeding was taken.  (Id.)  And the application must be “accompanied by a copy of the answer or other pleading proposed to be filed therein”.  (Id.) 

“It is settled that the law favors a trial on the¿merits. . . and therefore liberally construes¿section¿473.”  (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1477.)  “Doubts in applying¿section 473 are resolved in favor of the party seeking¿relief from¿default. . . and if that party has moved promptly for¿default relief,¿only slight evidence will justify an order granting such¿relief.”  (Id. at 1477-78.) 

DISCUSSION 

Defendants’ motions to set aside default are timely.  The motions were filed on January 25, 2023, within six months after default was entered on July 27, 2022.  The motions are also accompanied by a copy of the answer to the cross-complaint.  Accordingly, the motions are procedurally proper. 

Defendants’ motions are not accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, and accordingly, Defendants are not entitled to mandatory relief.   

Instead, Defendants seek discretionary relief which requires a showing of “mistake, inadvertence, surprise, or¿excusable neglect.”  Defendants aver they did not receive actual notice of the request for entry of default, as Aram Madzhinyan was not in the country when the request for default was served on him by mail.  (Madzhinyan Decl. ¶¶ 4-8.)  Defendants only became aware of the default when it was used as an exhibit in a deposition on an unrelated case.  (Madzhinyan Decl. ¶ 9.)  But Defendants never state they did not receive the cross-complaint or otherwise explain why they did not respond to the cross-complaint, much less that their failure to do so was the product of “mistake, inadvertence, surprise or excusable neglect.”  Defendants’ declaration focuses exclusively on the entry of default, without explaining the underlying failure to respond to the cross-complaint which resulted in the default.  As such, the Court concludes Defendants have not carried their burden to show they are entitled to discretionary relief.       

CONCLUSION 

For the foregoing reasons, the Court DENIES Defendants Aram G. Construction and Aram Madzhinyan’s motions to set aside default.   

DATED:  March 21, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court