Superior Court of California 

County of Los Angeles 

Department 78 

 

JUSTIN WEBB, et al.,

Plaintiffs, 

vs. 

JUSTIN CHOI, et al.,

Defendants. Case No.: 23STCV12128

MOTION TO SET ASIDE DEFAULT FILED BY DEFENDANT JUSTIN CHOI

 

Justin Choi’s motion to set aside default is GRANTED as to mandatory relief and is otherwise denied.

The answer and cross-complaint attached to the motion must be separately filed within two court days after the date of this order.

The Court sets the CMC for July 30, 2024 at 8:30 a.m.

Moving party to provide notice.

FACTUAL BACKGROUND  

This is an action for breach of contract. Plaintiffs Justin and Amanda Webb rented a Winnebago to Defendants Justin Choi and Bradley Blankenship in August 2022. On September 6, 2022, Plaintiffs learned that the Winnebago caught fire while being driven and occupied by three individuals Plaintiffs did not know. Defendants had given the Winnebago to these individuals without Plaintiffs’ consent in breach of the rental agreement. Defendants’ insurers refused to pay for the loss of the Winnebago because they were not operating or residing in the vehicle at the time it was destroyed.

PROCEDURAL HISTORY 

On May 30, 2023, Plaintiffs Justin and Amanda Webb filed this action against Justin Choi and Bradley Blankenship.

On July 25, 2023, Plaintiffs filed a First Amended Complaint.

On November 14, 2023, Plaintiffs dismissed Defendant Blankenship.

On November 16, 2023, the Court entered default as to Defendant Choi.

On March 1, 2024, Choi, the only remaining Defendant, filed this motion to set aside default.

On June 12, 2024, Plaintiffs filed an opposition.

On June 18, 2024, Defendant filed a reply.

DISCUSSION 

Defendant moves to set aside the default entered against him.

Under some circumstances, relief from a default is mandatory under Code of Civil Procedure Section 473(b) .

The statute provides that the court shall grant an application for relief it if it made no more than six months after entry of judgment, is in the proper format and is accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect.

The mandatory portion of this section references neglect, not excusable neglect as referenced in the discretionary portion of the statute.

These conditions have been met. 

Here, Plaintiffs’ FAC was filed on July 25, 2023. Plaintiffs served Defendant via personal service on September 6, 2023. (See proof of personal service dated September 15, 2023.) Defendant’s deadline to file a responsive pleading was October 6, 2023, 30 days after the FAC was served. (Code Civ. Proc., section 412.20.) 

Defendant testifies that when he received the FAC, he asked his counsel, Armstrong, to represent him and Bradley Blankenship. (Choi Decl., 4.) Armstrong testifies he believed representing both Defendants was a conflict of interest and required time to research the issue. (Armstrong Decl., ¶¶4-6.) After Plaintiffs dismissed Blankenship, Armstrong informed Defendant that he would work on filing an Answer and Cross-Complaint before default could be taken. (Id., ¶6.) Armstrong performed research on causes of motor home fires to avoid filing a pleading which would invite a demurrer. (Id., ¶¶7-8.) By the time he filed the Answer and Cross-Complaint, Plaintiffs had entered default against Defendant. (Id., ¶¶9-11.) Armstrong opines that he should have requested an extension to file a responsive pleading and that he could have filed “defective” pleadings. (Id., ¶15.) 

The Court’ finds that Defendant’s failure to timely file a responsive pleading was due to Armstrong’s neglect in handling this matter. Although Armstrong claims some delay was caused by the need to research the potential conflict of interest, Choi approached Armstrong in September 2023. By the time Blankenship was dismissed in November 2023, about two months had passed since Choi first contacted Armstrong. A reasonably prudent attorney would have known of the impending deadline to file a responsive pleading and advised Choi to seek different counsel, seek counsel independently of Blankenship, or attempt to obtain the required waiver. It was not reasonable for Armstrong to miss the responsive pleading deadline to perform research for two months. 

Additionally, it was unreasonable for Armstrong to spend additional time researching motor home fires and waiting until November 2023 to file an Answer and Cross-Complaint. A reasonably prudent attorney would have filed an Answer with the information reasonably available and sought leave to amend later. As for the Cross-Complaint, Armstrong could have moved for leave to file it later. It was unreasonable for Armstrong to miss the filing deadline and risk default judgment.

Although Armstrong’s neglect was not excusable here, Code Civ. Proc., section 473(b) states the Court is required to grant an application timely made under this section where an attorney’s affidavit attests to the attorney’s mistake, inadvertence, surprise, or neglect. This portion of the statute does not require that the neglect be excusable. Here, Armstrong admits he should have asked for an extension, admits facts which show he neglected the matter, and admits he could have filed a responsive pleading earlier. Because Armstrong’s affidavit attests to Armstrong’s neglect, the Court is required to grant the motion. 

Accordingly. Defendant’s motion to set aside default is granted.

Both parties also objected to each other’s evidence filed in support of and against this motion. The objections are to evidence not material to the Court’s analysis. Therefore, the Court declines to rule on them. 

DATED: June 26, 2024

                                                                     ________________________________ 

Hon. Jill Feeney 

Judge of the Superior Court