Judge Kerry Bensinger, Case Number: 21STCV35730, Date: 2025-01-09 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

CASE: The Redeemed Christian Church of God-Jesus Embassy, Los Angeles v. Mutiu Olatunji Durosinmi-Etti, et al.

RESPONDING PARTY: Plaintiff The Redeemed Christian Church of God-Jesus Embassy, Los Angeles

This is a breach of contract case concerning real property. On September 28, 2021, Plaintiff, The Redeemed Christian Church of God-Jesus Embassy Los Angeles, filed a complaint against Defendants, Swift Petrochemicals, Inc. and Mutiu Olatunji Durosinmi-Etti.

On October 9, 2023, Plaintiff filed the Third Amended Complaint alleging causes of action for (1)¿Breach of Contract, (2)¿Promissory Estoppel, (3)¿Breach of the Implied Covenant of Good Faith and Fair Dealing, (4)¿Declaratory Relief, (5)¿Constructive Trust, and (6)¿Fraud.

On March 4, 2024, the court sustained Defendants’ demurrer to the promissory estoppel cause of action without leave to amend and sustained the demurrer to all other causes of action with leave to amend.

On April 4, 2024, Plaintiff filed the operative Fourth Amended Complaint (FAC) for (1)¿Breach of Contract, (2)¿Breach of the Implied Covenant of Good Faith and Fair Dealing, (3)¿Declaratory Relief, (4)¿Constructive Trust, and (5)¿Fraud.

On July 24, 2024, the court overruled the demurrer to the FAC. Defendants were ordered to serve and file their answer to the FAC within 15 days of the date of the order.

On August 13, 2024, the court granted Defendants’ ex parte application to extend time to answer the FAC. Defendants were given until September 12, 2024 to file their answer.

On September 9, 2024, Defendants retained Raymond Obiamalu to serve as co-counsel for Defendants with current defense counsel Alaba Ajetunmobi. The next day, Mr. Obiamalu and Mr. Ajetunmobi appeared for a Case Management Conference.

On September 13, 2024, after Defendants did not file their answer, Plaintiff requested entry of default against Defendants. Default was entered against Defendants on the same day.

On September 23, 2024, Defendants filed a Notice of Association of Counsel to formally inform the court that Mr. Obiamalu had associated as co-defense counsel.

On October 1, 2024, Defendants filed a Substitution of Attorney relieving Mr. Ajetunmobi as co-counsel for Defendants in this lawsuit.

On October 11, 2024, Defendants filed this Motion to Set Aside Default and Default Judgment, If Entered: CCP § 473(b).

Code of Civil Procedure section 473, subdivision (b) provides that a court may “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.”¿ In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “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., § 473, subd. (b).)¿¿¿

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”¿ (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Cal.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”].)¿

Defendants seek relief to vacate the default on the grounds that Defendants’ counsel Mr. Obiamalu operated under the mistaken assumption that Defendants’ (now former) counsel Mr. Ajetunmobi would be filing the answer to the FAC. (Obiamalu Decl., ¶ 4.) For this reason, Defendants argue their failure to timely answer the FAC was the result of his counsel’s mistake, inadvertence, surprise and excusable neglect.

Plaintiff contends that Defendants grounds for relief does not constitute mistake, inadvertence, surprise, or excusable neglect. The court disagrees. “Within the context of section 473(b) neglect is excusable if a reasonably prudent person under similar circumstances might have made the same error.” (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 929.) Here, Mr. Obiamalu has represented Defendants in this matter since June 26, 2023. (See Substitution of Attorney, 6/26/23.) Later, Defendants retained Mr. Obiamalu on September 10, 2024, just two days before Defendants’ answer was due. Under these circumstances, a reasonably prudent person would have assumed Mr. Ajetunmobi would prepare and file the answer. The court finds the failure to timely serve and file an answer to the FAC was due to excusable neglect.

Based on the foregoing, the motion to set aside default is GRANTED. The default entered against Defendants on September 13, 2024 is VACATED. Defendants’ proposed answer is deemed filed as of this date. The court further directs Defendants to separately file their answer with the court within the next five court days.

¿¿¿

¿ Kerry Bensinger¿¿

¿ Judge of the Superior Court¿