Judge: Mark C. Kim, Case: 20LBCV00201, Date: 2023-02-16 Tentative Ruling

Case Number: 20LBCV00201    Hearing Date: February 16, 2023    Dept: S27

1.     Complaint

Plaintiffs, Kamran Ghadimi, M.D. and Advanced Pain Treatment Medical Center filed this action against Defendant, Eileen Talbott for damages arising out of Defendant’s alleged failure to pay bills in connection with Plaintiffs’ care and treatment of Defendant. 

2.     Settlement

Defendant made a settlement offer, and Plaintiffs’ attorney accepted.  However, Plaintiffs’ attorney had been unaware that Ghadimi was intending to compromise the medical treatment claims (his own claims), but not the facility claims (APTMC’s claims).  Thereafter, the settlement unraveled. 

3.     Motion for Leave to File a Cross-Complaint

On 11/17/122, the Court heard and granted Defendant’s motion for leave to file a cross-complaint for breach of the parties’ settlement agreement. 

On 11/18/22, Defendant filed her cross-complaint.  On 12/20/22, Plaintiffs’ attorney filed a Declaration of Demurring Party in Support of Automatic Extension.  On 12/28/22, at Defendant’s request, the Clerk entered Plaintiffs’ defaults on the cross-complaint.  The Clerk did so despite the declaration, as Defendant’s proof of service showed service of the cross-complaint on Plaintiffs on 11/18/22 by electronic submission, and therefore the declaration was not timely filed.

4.     Motion to Vacate Default

a.     Parties’ Positions

Plaintiffs move to vacate the default entered against them, contending the default was entered solely as a result of their attorney’s mistake and neglect in failing to timely file the demurrer extension declaration.  They contend relief is mandatory in light of the attorney affidavit of fault.

Defendant opposes the motion.  She argues Plaintiffs’ default was not entered as a result of their attorney’s neglect or error, but instead as a result of a calculated litigation strategy that backfired. 

Plaintiffs, in reply, reiterate their position that relief is mandatory in light of the attorney affidavit of fault.

b.     Analysis

As an initial note, Defendant argues the motion must be denied because the cross-complaint is verified but the proposed answer to the cross-complaint is unverified.  Plaintiffs, with their reply papers, submitted a verification, and the Court is not inclined to deny the relief sought on this technical ground, especially where it has been cured.

The issues presented by way of this motion are two-fold.  The first issue is whether the Court has authority to deny a motion to vacate default when the moving party files an attorney affidavit of fault, but the Court finds the affidavit is not credible and the real reason for the entry of default was a calculated litigation strategy that did not pan out as expected.  The second issue is whether, if denial is appropriate under those circumstances, those circumstances exist here.

Defendant relies on Jerry’s Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4^th 1058, 1073 and Yeap v. Leake (1997) 60 Cal.App.4^th 591, 601, which collectively stand for the position that the Court can deny a motion to vacate default based on an attorney affidavit of fault if the Court finds the default was entered as a result of the attorney’s calculated litigation strategy, rather than as a result of neglect or mistake.

Thus, the second issue is whether Defendant, in this case, established that to be the case here.  Defendant provides evidence that Plaintiffs knew of her plan to file her cross-complaint and then move for judgment on the pleadings immediately, obviating the need for a trial.  Defendant provides evidence that Plaintiffs knew the cross-complaint would survive demurrer, because the Court’s ruling on Defendant’s motion for leave to file the cross-complaint addressed and rejected Plaintiffs’ contention that the proposed cross-complaint failed to state a cause of action.  Defendant provides evidence that Plaintiffs never truly intended to file a demurrer, as their proposed responsive pleading with the motion is an answer.  Defendant provides evidence that Plaintiffs never attempted to meet and confer prior to filing the declaration seeking an extension of time to do so; Defendant provides evidence that Plaintiffs’ attorney’s declaration that he attempted to meet and confer on 11/18/22 was a lie.  Defendant’s evidence, collectively, establishes that the decision not to file a timely answer and instead to file a declaration re: extension of time was a litigation strategy, not a mistake or the result of neglect. 

Plaintiffs, in their reply papers, address absolutely none of the foregoing.  They also do not address the remaining bad faith showings made by way of the opposition papers.  Their silence in this regard speaks volumes.  Plaintiffs simply reiterate their position that relief is mandatory when there is an attorney affidavit of fault, without actually addressing the evidence to the contrary.  The motion for relief is therefore denied.  The default stands. 

Defendant is ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  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.  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 any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.