Judge Holly J. Fujie, Case Number: 23STCV26178, Date: 2024-08-06 Tentative Ruling

This is an action arising from a complaint (the “Complaint”) filed by Plaintiff on October 26, 2023 against Defendants Los Angeles Computer Department LLC, Mark Ivanov (“Ivanov”) and Bryan Hollenbeck. The Complaint asserts the following causes of action: (1) breach of contract; (2) fraud; (3) negligent misrepresentation; and (4) concealment.

On April 29, 2024, the Court noted that pursuant to Minute Orders dated February 27, 2024, and April 12, 2024, Plaintiff was to resubmit the request for entry of default (“Request for Default”) as to Ivanov, but the request was not resubmitted by Plaintiff. Thus, the Court ordered the dismissal of Mark Ivanov in the Complaint without prejudice. (April 29, 2024 Minute Order; April 29, 2024 Order of Dismissal.)

On June 13, 2024, Plaintiff filed the instant motion seeking to set aside the dismissal of Ivanov (the “Motion”). Plaintiff is also requesting leave to amend Ivanov’s name from “Mark Ivanov” to “Nikolay Ivanov.” No opposition has been filed.

The court is empowered to relieve a party or their legal representative from a judgment,

dismissal, order, or other proceeding taken against them through their 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 proceeding was taken. (Id.) The law favors a trial on the merits and courts therefore liberally construe 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. (Id. at 1478.)

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer…” (Code Civ. Proc., § 473(a)(1).)

Plaintiff’s counsel declares that on or before April 29, 2024, he suffered from technical issues that prevented him from receiving reminders or alerts regarding the need to file the Request for Default. (Declaration of Vladimir Shagramanov, Esq., ¶ 6.) He further declares that he had prepared the Request for Default, but inadvertently failed to file it with the Court. (Id., ¶ 7.)

Moreover, Plaintiff’s counsel attests that Plaintiff’s former counsel made an error in using “Mark Ivanov” on the summons as well as on the face page of the Complaint, but used the correct name of “Nikolay Ivanov” on page two of the Complaint. (Id., ¶ 8.) Plaintiff thus requests leave to correct Ivanov’s name from “Mark Ivanov” to “Nikolay Ivanov.”

The Court finds that Plaintiff has adequately shown that the dismissal of the Complaint was the result of Plaintiff’s counsel’s mistake, inadvertence or excusable neglect. In addition, the Motion is timely filed within six months of the order of dismissal of Ivanov. For these reasons and because it is unopposed, the Court GRANTS the Motion and orders that the dismissal of Ivanov be vacated, and that the Complaint be reinstated as against Ivanov. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) Further, in the interest of justice, Plaintiff’s request to amend Ivanov’s name is GRANTED.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court