Judge: Jon R. Takasugi, Case: 23STCV25985, Date: 2025-01-09 Tentative Ruling

Case Number: 23STCV25985    Hearing Date: January 9, 2025    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiffs’ motion to set aside is DENIED.

On 10/24/2023, Plaintiffs James Davis, Paranotek, LLC, and Astra Veda Corporation (collectively, Plaintiffs) filed suit against Scott Eppinga, Bradley M. Listermann, Benjamin Eppinga, and Think Humble, Inc. On 4/24/2024, Plaintiffs filed a first amended complaint (FAC) alleging: (1) breach of fiduciary duties; (2) breach of the duty of good faith and fair dealing; (3) fraud; and (4) unjust enrichment.

            On 5/23/2024, Defendants Scott Eppinga’s, Benjamin Eppinga’s, and Think Humble’s  (collectively, Defendants’) unopposed demurrer was sustained, without leave to amend.

            Now, Plaintiffs move to set aside the order sustaining Defendants’ demurrer. 

Discussion

            Plaintiffs seek to set aside the ruling sustaining Defendants’ demurrer on the grounds that Plaintiff’s counsel of record Mainak D’Attaray admitted fault in failing to oppose the demurrer.

Plaintiffs cite Civil Code § 473(b) as the ground for their request relief, which provides:

(b) 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. . . Notwithstanding any other requirements of this section, the court shall, 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. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.

            However, as noted by Defendants, Plaintiffs’ motion is deficient in a number of regards. First, while Plaintiffs’ Notice of Motion and Motion to Vacate references a “Declaration of Mainak D’Attaray” admitting attorney fault, no such document has been filed. Second, and importantly, Plaintiffs’ motion does not include a copy of the proposed pleading, i.e., the draft opposition to the demurrer. As such, Plaintiffs still have not set forth the grounds on which they would or could oppose Defendants’ demurrer.

            Strangely, despite Defendants identifying these deficiencies in an 8/23/2024 filing, Plaintiffs did not prepare any reply or supplemental materials. Indeed, in the months following this 8/23/2024 filing, there have been no new filings by either party. 

            Based on the foregoing, Plaintiffs’ motion to set aside is denied.

It is so ordered.

Dated:  January    , 2025

   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.  For more information, please contact the court clerk at (213) 633-0517.