Judge: Jon R. Takasugi, Case: 21STCV35133, Date: 2022-12-12 Tentative Ruling

Case Number: 21STCV35133    Hearing Date: December 12, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motion to set aside default and/or leave to file a FAC is GRANTED.

On 9/23/2021, Plaintiff Insight Psychotherapy Group (Plaintiff) filed suit against Kyle Lott (Defendant), alleging: (1) conversion; (2) breach of fiduciary duty; (3) unjust enrichment; (4) an accounting; and (5) fraud, deceit, and misrepresentation of fact.

            Now, Defendant Kyle Lott moves to set aside the entry of default and/or leave to file a First Amended Complaint (FAC).

Legal Standard

Code of Civil Procedure (CCP) section 473, subdivision (b) provides:

“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.”

Discussion

            Defendant argues the good cause exists to set aside the entry of default because his answer was stricken due to excusable neglect.

            In support, Defendant argues:

After filing this lawsuit on September 23, 2021, counsel for Plaintiff did not cause the Complaint to be served on Defendant. Instead, in or about late October 2021, Defendant received a solicitation from a law firm in the mail telling him he had been sued and offering its services. Defendant then located this lawsuit on the Los Angeles Superior Court website, downloaded a copy of the Complaint and reviewed it. Without hiring or even consulting legal counsel, and without having been served with the Complaint, Defendant then filed his Answer to the Complaint in this action in pro per on November 8, 2021 and designated his then home address, 11856 Moorpark Street, Apt. F, Studio City, California 91604, as his address for service of papers in this action.

A few weeks later, in early December 2021, Defendant moved out of his Studio City townhouse because his 82-year-old mother was living with him at this point and she could not handle the stairs in this three-story townhouse. Defendant needed to move his mother to a single-story residence. The townhouse went on the market in January 2022 and escrow closed on the sale of Defendant’s townhouse in February 2022. Unfortunately, Defendant failed to provide either the Court or counsel for Plaintiff with a new address for service of papers in this action. As a result, Defendant did not receive any of the papers from this action that may have been mailed to his former residential address after early December 2021. Nor did Defendant receive any emails from counsel for Plaintiff.

During the week of October 10, 2022, Defendant received a telephone call from a friend asking why he had not responded to this friend’s email. It was only when Defendant checked his email account’s spam folder that he found both the friend’s email and an email from Plaintiff’s counsel attaching the October 4, 2022 Notice of Ruling regarding Plaintiff’s successful Motion For Terminating Sanctions. Defendant then immediately located and hired counsel to assist him in

this matter.

            (Motion, 2:4-27.)

            Defendant’s motion is timely and is accompanied by a proposed answer. Given these facts, alongside Defendant’s explanation, the Court is persuaded that relief is warranted. (See Elston v. City of Turlock (1985) 38 Cal.3d 22, 23 (on a motion pursuant to Code of Civil Procedure section 473, “very slight evidence will be required to justify a court in setting aside the default.”)

            Based on the foregoing, Defendant’s motion to set aside default and/or leave to file a FAC is granted.

It is so ordered.

Dated:  December    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.