Judge: Edward B. Moreton, Jr, Case: 22SMCV02107, Date: 2025-01-13 Tentative Ruling

Case Number: 22SMCV02107    Hearing Date: January 13, 2025    Dept: 205

Superior Court of California

County of Los Angeles

Beverly Hills Courthouse | Department 205

Background

On October 28, 2022, Plaintiff Guzy Regev (“Plaintiff”) filed a complaint against Defendant Niv Levy (“Defendant”) and Does 1-50, which asserted eight causes of action.  

On February 16, 2023, Plaintiff filed a First Amended Complaint (“FAC”) against Defendant alleging causes of action for: (1) intentional infliction of emotional distress, (2) negligent infliction of emotional distress, (3) liability for injuries to pets, (4) conversion, (5) breach of contract, (6) fraud, (7) breach of fiduciary duties, and (8) unfair business practices.

On June 16, 2023, after hearing, the Court overruled in part and sustained in part Defendant’s demurrer to the FAC with leave to amend, as well as granted in part and denied in part Defendant’s motion to strike. (06/16/23 Minute Order at pp. 11-12.)  

On July 5, 2023, Plaintiff filed a Second Amended Complaint (“SAC”) against Defendant alleging causes of action for: (1) intentional infliction of emotional distress, (2) negligent infliction of emotional distress, (3) liability for injuries to pets, (4) conversion, (5) breach of contract, (6) fraud, (7) breach of fiduciary duties, and (8) unfair business practices.

On November 8, 2023, after hearing, the Court sustained in part and overruled in part Defendant’s demurrer to the SAC. (11/08/23 Minute Order at p. 6.)

On November 27, 2023, Plaintiff filed a Third Amended Complaint (“TAC”) against Defendant alleging causes of action for: (1) intentional infliction of emotional distress, (2) negligent infliction of emotional distress, (3) liability for injuries to pets, (4) conversion, (5) breach of contract, (6) fraud, (7) breach of fiduciary duties, and (8) unfair business practices.

On April 23, 2024, after hearing, the Court sustained in part and overruled in part Defendant’s demurrer to the TAC. (04/23/24 Minute Order at p. 5.)

On May 3, 2024, Defendant filed a motion to stay this action pending the resolution of Defendant’s criminal case, to which Plaintiff filed an opposition and Defendant replied.

On May 15, 2024, Defendant filed an ex parte application for a temporary stay of civil proceedings, which was granted by the Court on May 17, 2024. (05/17/24 Minute Order at p. 1.) The Court temporarily suspended this action until May 31, 2024. (05/17/24 Minute Order at p. 1.)  

On May 31, 2024, after hearing, the Court granted Defendant’s motion for stay of proceedings. (05/31/24 Minute Order at p. 1.) The Court set a status conference for July 3, 2024. (05/31/24 Minute Order at p. 1.)

At the July 3, 2024 status conference, the Court granted defense counsel’s request to continue the stay. (07/03/24 Minute Order at p. 1.) The Court continued the status conference to October 30, 2024. (07/03/24 Minute Order at p. 1.)

On October 30, 2024, there were no appearances by or for either side, nor any communication with the Court as to why there were no appearances. (10/30/24 Minute Order at p. 1.) The Court set an OSC re: Sanctions for Failure to Appear for November 26, 2024. (10/30/24 Minute Order at p. 1.) The Court indicated that “[s]anctions imposed may include the striking of the answer or dismissal of the case.” (10/30/24 Minute Order at p. 1.) The Clerk’s office provided notice of the October 30, 2024 order to counsel for the parties. (See 10/30/24 Certificate of Mailing.)

On November 26, 2024, there were no appearances by or for either side, nor any communication with the Court as to why there were no appearances. (11/26/24 Minute Order at p. 1.) The parties also failed to submit a joint status report “as previously ordered.” (11/26/24 Minute Order at p. 1.) There was also no response to the order to show cause. (11/26/24 Minute Order at p. 1.) The Court ordered Plaintiff to pay sanctions to the Court in the sum of $300.00 by December 16, 2024. (11/26/24 Minute Order at p. 1.) The Court imposed sanctions on Defendant by striking the answer.^[1] (11/26/24 Minute Order at p. 1.) The Court set an OSC re: Default for February 24, 2025. (11/26/24 Minute Order at p. 1.)

On December 13, 2024, Defendant filed and served the instant Motion to Vacate Order of November 26, 2024 and to Reinstate the Stay Order (the “Motion”).

As of January 9, 2025, the Motion is unopposed. Any opposition to the Motion was required to have been filed and served at least nine court days prior to the hearing. Code Civ. Proc., § 1005, subd. (b).

Motion to Vacate Order Standard

            “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). “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.

            Code Civ. Proc. § 473(b) also contains a mandatory relief provision. SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516. “[T]he 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.” Ibid. “If the prerequisites of the mandatory relief provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.” Ibid.  

Analysis

Evidence in Support of the Motion

            Defendant’s counsel, Mark Waecker (“Waecker”), provides a declaration in support of the motion. Mr. Waecker states that he encountered difficulties appearing at the October 30, 2204 hearing as he signed in and was waiting for the Court to call the case but his “staff was unable to get through to the court” initially in order to “speak to the clerk as to why this case was not called.” (Waecker Decl., ¶¶ 4, 5.) Counsel’s staff was ultimately able to get through “and spoke to the clerk who indicated the case had already been called and a minute order [would] be mailed. [Counsel’s] staff explained to the clerk that [Mr. Waecker] had been waiting since 8:30 am and that was no entry into the court for an appearance.” (Waecker Decl., ¶ 5.)

            As to his failure to appear at the November 26, 2024 hearing, Mr. Waecker indicates that he was working on Defendant’s criminal case and he noticed at approximately 9:00 a.m. that morning “that there was some information that [he] would have to submit to the criminal court concerning the case.” (Waecker Decl., ¶ 9.) He realized at 9:15 a.m. that he mis-calendared the hearing date in this action and he “immediately stopped what [he] was doing and attempted to log on to the court without success.” (Waecker Decl., ¶ 9.) Mr. Waecker states that he “asked [his] staff to contact the courtroom to let them know that [he] was waiting for the court appearance and was told that the case was already called and that [they] would receive a minute order.” (Waecker Decl., ¶ 10.)

            Counsel attests that the error was the fault of his office and himself given that he is the attorney of record for Defendant. (Waecker Decl., ¶ 12.) Such error occurred through inadvertence, mistake, and excusable neglect as the hearing was mis-calendared. (Waecker Decl., ¶ 12.) Defendant has a meritorious defense to the complaint and has a substantial cross-complaint to be filed in this case. (Waecker Decl., ¶ 12.) Defendant requests that the Court “vacate the [o]rder of November 26, 2024 and, re-impose the [s]tay [o]rder as the criminal case is active and being prosecuted” against Defendant. (Waecker Decl., ¶ 14.)

            Defendant’s Motion is Procedurally Deficient

As an initial matter, the Court notes that Plaintiff did not file an opposition. While the moving party generally bears the initial burden of proof on its motion, and lack of opposition will not automatically entitle the moving party to prevail on its motion, a party’s failure to file an opposition can be considered a concession that the motion is meritorious. See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.

Initially, the Court notes that the stay order has not been lifted by this Court. Thus, the Court opines why Defendant sought to reinstate the stay in this action when such stay was never lifted.

Here, Defendant has shown that the November 26, 2024 order was entered due to the inadvertence of defense counsel in mis-calendaring the hearing date. Defendant, however, did not file a proposed answer or other pleading with the Motion. Thus, the Motion is procedurally improper, and the Court cannot grant discretionary relief under CCP § 473(b). Defendant should have attached a copy of the proposed answer and/or cross-complaint to the declaration of Mr. Waecker.

Furthermore, Defendant is not entitled to mandatory relief under CCP § 473(b) as there neither been entry of judgment in this action nor an entry of default or default judgment against Defendant.

Conclusion

Based on the foregoing, the Court DENIES WITHOUT PREJUDICE Defendant’s Motion to Vacate Order of November 26, 2024 and to Reinstate the Stay Order.

Dated: January 13, 2025

__________________________________________

Edward B. Moreton, Jr.

Judge of the Superior Court