Judge: Joel L. Lofton, Case: 23AHCV00290, Date: 2023-06-22 Tentative Ruling

Case Number: 23AHCV00290    Hearing Date: June 22, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:    June 22, 2023                                       TRIAL DATE: No date set.

CASE:                         ANTHONY K. CHU d.b.a. LAW OFFICES OF ANTHONY K. CHU v. JIAN JUN LIU a.k.a. MATT LIU, an individual; and DOES 1 through 20

CASE NO.:                 23AHCV00290

MOTION TO SET ASIDE DEFAULT

MOVING PARTY:               Defendant Jian Jun Liu

RESPONDING PARTY:      Plaintiff Anthony K. Chu

SERVICE:                              Filed May 30, 2023

OPPOSITION:                       Filed June 7, 2023

REPLY:                                   Filed June 14, 2023

RELIEF REQUESTED

             Defendant moves to set aside default and default judgment.

BACKGROUND

             This case arises out of Plaintiff Anthony K. Chu’s (“Plaintiff”) claim that Defendant Jian Jun Liu (“Defendant”) failed to pay legal fees. Plaintiff alleges that on March 21, 2017, Defendant entered into a written retainer agreement for Plaintiff’s legal services. Plaintiff alleges that Defendant still owes $53,668 of $94,668 in fees. Plaintiff filed this complaint on February 9, 2023, alleging two causes of action for (1) breach of written contract and (2) common count: open book account.

TENTATIVE RULING

            Defendant’s motion to set aside the default and default judgment is GRANTED.

LEGAL STANDARD

“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 discretionary relief provisions of Code of Civil Procedure section 473, subd. (b) provide in relevant part: “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. 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.” 

The mandatory relief provision provides that a court shall grant relief “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.” (Code Civ. Proc. section 473, subd. (b).)

DISCUSSION

            Plaintiff filed his complaint on February 9, 2023. On May 5, 2023, default was entered against Defendant. Default judgment was entered against Defendant on May 10, 2023.Defendant moves to set aside default and default judgment on the grounds that his default was based on mistake, inadvertence, surprise, or excusable neglect.

            Defendant provides he was in China from February 4, 2023, to April 28, 2023. (Liu Decl. ¶ 3.) He also provides that he has never heard of a Hanwei Liu, the individual listed on the proof of substituted service, and that such an individual is not a coresident. (Id. ¶ 5.) Defendant provides he lives with his bedridden mother, and he has hired female caregivers to provide care for his mother. (Id. ¶ 5.) Defendant provides that he did not learn about this case until May 15, 2023, when he received Plaintiff’s default package in the mail. (Id. ¶ 6.) Defendant does admit that he saw a summons and complaint on April 28, 2023, but mistook the envelope as junk mail and did not open it. (Ibid.)

            Here, Defendant has demonstrated that his failure to respond was a result of mistake, inadvertence, surprise, or excusable neglect. Further, Defendant filed this motion to set aside default in a timely manner.

            Defendant’s motion to set aside the default and default judgment is GRANTED.

CONCLUSION

            Defendant’s motion to set aside the default and default judgment is GRANTED.

            Defendant is ordered to file and serve his answer within 5 days of notice of this order

Court to set a Case Management Conference on August 28, 2023, at 8:30 am.

Moving Party to give notice.

Dated:   June 22, 2023                                                ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org