Judge: John J. Kralik, Case: 22BBCV000514, Date: 2024-04-12 Tentative Ruling

Case Number: 22BBCV000514    Hearing Date: April 12, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Nora Bekerian (“Plaintiff”) alleges that she is the owner of a single-family home located at 10413 Samoa Avenue, Tujunga, CA 91042.  Plaintiff alleges that she hired Defendant Mickey Lynn McClinton (“Defendant”) on October 1, 2021, to construct two accessory dwelling units and legalize an already-built ADU on the property.  Plaintiff alleges that the total price of the project was $1,200,000.  Plaintiff alleges that Defendant demanded $575,000 to pay for permits and materials and that he represented himself as a highly experienced contractor.  Plaintiff alleges that Defendant never disclosed that he was an unlicensed contractor and failed to provide a written agreement of material terms and disclosures.  Plaintiff alleges that she has paid $575,000 to Defendant, but the project remains incomplete.  In March 2022, Defendant abandoned work on the project.  Plaintiff alleges that she has requested the return of the money from Defendant, but to no avail.

The first amended complaint (“FAC”), filed December 9, 2022, alleges causes of action for: (1) recovery of unlicensed practice; (2) violation of Business & Professions Code, § 7160; (3) fraud; (4) recission; (5) violation of Welfare & Institutions Code, § 15610.30; and (6) unfair business practices. 

B.     Relevant Background and Motion on Calendar

On August 29, 2023, the default of Defendant was entered. 

On December 8, 2023, Plaintiff dismissed Does 1-100 only without prejudice.

On February 26, 2024, Defendant (in pro per) filed a motion to set aside the entry of default.    

On March 29, 2024, Plaintiff filed an opposition brief.

DISCUSSION

            Defendant moves to set aside the default entered against him on August 29, 2023 and for leave to file an answer and cross-complaint.  A copy of the proposed answer is attached as Exhibit 1 to the motion.  A copy of the proposed cross-complaint is attached as Exhibit 2 to the motion. 

            Defendant requests that the Court deems this motion timely filed.  The default was entered on August 29, 2023.  The motion was filed on February 26, 2024.  To be timely pursuant to CCP § 473(b), the motion must be filed within 6 months of the dismissal, or 182 days.  (See Davis v. Thayer (1980) 113 Cal.App.3d 892, 903 [concluding that 6 months is the equivalent of half a year, or under Gov’t Code § 6803, 182 days for the purposes of CCP § 473(b)].)  The 182^nd day from August 29, 2023 falls on February 27, 2024.  Thus, the motion was timely filed on February 26, 2024. 

            Defendant argues that Plaintiff did not serve a Statement of Damages pursuant to CCP § 425.115 as Plaintiff is seeking punitive damages; however, Plaintiff filed a Notice Regarding Punitive Damages on January 11, 2023.  Plaintiff’s counsel states that Defendant was served with the FAC, the Notice of Punitive Damages, and other documents on December 14, 2022 and he emailed Defendant the documents on January 11, 2023.  (Kosoyan Decl., ¶6, Exs. 2, 3, and 5.)  The motion will not be granted on this basis. 

            Defendant also argues that relief from entry of default is proper based on the mistake of fact in relying on his paid attorney to answer the complaint on his behalf.  In his declaration, Defendant states that he contacted attorney Larry Clough to discuss Mr. Clough’s representation of Defendant in Plaintiff’s action and that Defendant agreed to hire Mr. Clough’s office to file an answer.  (McClinton Decl., ¶9.)  He states that though Mr. Clough did not give him a written retainer agreement, he paid Mr. Clough $5,000 in late January 2023.  (Id., ¶10.)  He states that he left Los Angeles on January 29, 2023, believing Mr. Clough would handle the defense in the action and states that he did not return to Los Angeles until December 24, 2023.  (Id., ¶11.)  He states that he did not know about the default until December 2023 around the time a second lawsuit had been filed by Plaintiff, which he believes is related to this action.  (Id., ¶¶13-14.)  Defendant argues in his motion that though he received a copy of the lawsuit, he was under a mistaken belief that his attorney would respond.  (Mot. at pp.5-6.) 

            In opposition, Plaintiff argues that Defendant has not shown any proof that he retained Mr. Clough or proof of payment of the retainer.  Plaintiff argues that her counsel contacted Mr. Clough on May 9, 2023 when attempting to serve Defendant, but Mr. Clough stated that he did not represent Defendant.  (Opp., Ex. 1 [Plaintiff’s Motion to Serve by Publication at Exs. 8-9].) Based on the emails between Plaintiff’s counsel and Mr. Clough, it appears that Defendant contacted Mr. Clough to represent him but that Defendant refused to sign an Acknowledgement of Receipt while he was out of town and had instructed Mr. Clough not to sign the Acknowledgement without his approval.  (Opp., Ex. 1 at Ex. 8 [Emails].)  In another email, Plaintiff’s counsel emailed Mr. Clough to confirm their conversation that Mr. Clough does not represent Defendant.  (Opp. at Ex. 1 at Ex. 9 [Email].)

            Based on the papers and declarations before the Court, the Court has significant questions about Defendant’s credibility. Clearly he was on notice about this litigation.  Although he took some steps to contact an attorney, he admits that he did not obtain a retainer agreement from his proposed counsel.  Further, the communications between Mr. Clough and Plaintiff’s counsel show that Mr. Clough was not authorized (by the express direction of Defendant) to perform actions on Defendant’s behalf. It is not believable that Defendant would be out of town for nearly a year while ignoring this significant matter.  Defendant has not provided a declaration from Mr. Clough to support a showing that he had retained Mr. Clough to represent him in this action; he did not file such a declaration with his moving papers and he did not file a reply brief.  Defendant has also not provided any documentary evidence of a retainer being paid.

            Here, Defendant has not upheld his burden in showing that the default was entered against him pursuant to CCP § 473(b) or (d).  

CONCLUSION AND ORDER

            Defendant Mickey Lynn McClinton’s motion to vacate the default is denied.

            Defendant shall provide notice of this order.

DATED:  April 12, 2024                                                        ___________________________

                                                                                          John J. Kralik

                                                                                          Judge of the Superior Court