Judge Mark E. Windham, Case 21STLC06142 2022-10-27 Tentative Ruling

Judge: Mark E. Windham, Case: 21STLC06142, Date: 2022-10-27 Tentative Ruling

Case Number: 21STLC06142 Hearing Date: October 27, 2022 Dept: 26

MOTIONS TO VACATE ENTRY OF DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Defendants Kenarik Boghouzian and Seroj Boghouzian’s Motions to Vacate Entry of Default are GRANTED. DEFENDANTS KENARIK BOGHOUZIAN AND SEROJ BOGHOUZIAN ARE TO FILE AND SERVE THEIR ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

Plaintiff Chris Langer (“Plaintiff”) filed the instant action for discrimination on the basis of disability against Defendants Kenarik Boghouzian (“Defendant Kenarik”), Seroj Boghouzian (“Defendant Seroj”) and Garabet Nercessian (“Defendant Nercessian”) on August 23, 2021. Following Defendants’ failure to file a responsive pleading, the Court entered their defaults on January 26, 2022. Defendants Kenarik and Seroj filed the instant Motions to Vacate Default on July 22, 2022. No opposition has been filed to date.

Discussion

Defendants Kenarik and Seroj move to vacate the entry of default pursuant to Code of Civil Procedure section 473, subdivision (b). Under this statute, an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 136.) The motion must also be accompanied by a copy of the moving defendant’s proposed pleading. (Code Civ. Proc., § 473, subd. (b).) When based on an attorney affidavit of fault, the relief sought must be granted if the statutory requirements are satisfied. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) When brought pursuant to the provision for discretionary relief based on party fault, the request must have been filed within a reasonable amount of time.

The Motions are brought based on the fault of defense counsel and were timely filed within six months of the entry of defaults. (Motions, § B.) Defense counsel explains that after this action was filed, the attorneys were in communication regarding an extension of the time for Defendants to answer the Complaint. (Motions, Karapetian Decl., ¶¶7-9 and Exhs. A-B.) Due to the ongoing communication with Plaintiff’s counsel and the timing of defense counsel’s medical leave, defense counsel failed to provide the requested stipulation for an extention of the time to answer. (Id. at ¶10.) The Motions are also accompanied by a copy of moving Defendants’ proposed Answer. (Id. at Exh. C.)

This evidence demonstrates that moving Defendants have timely sought to vacate the entry of default according to the statutory requirements of an attorney affidavit of fault and copy of their proposed responsive pleading. Therefore, pursuant to Code of Civil Procedure section 473, subdivision (b), the Court must vacate the default entered against Defendants Kenarik and Seroj.

The Court also notes that regardless of defense counsel’s fault, it would vacate the defaults entered based on Plaintiff’s counsel’s violation of the standards of professional conduct. The Court of Appeals has explained:

The State Bar Civility Guidelines deplore the conduct of an attorney who races opposing counsel to the courthouse to enter a default before a responsive pleading can be filed. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 702, 84 Cal.Rptr.3d 351 (Fasuyi), quoting section 15 of the California Attorney Guidelines of Civility and Professionalism (2007).) Accordingly, it is now well-acknowledged that an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary's default. (Id. at pp. 701-702, 84 Cal.Rptr.3d 351.)

In that regard we heartily endorse the related admonition found in The Rutter Group practice guide, and we note the authors' emphasis on reasonable time: “Practice Pointer: If you're representing plaintiff, and have had any contact with a lawyer representing defendant, don't even attempt to get a default entered without first giving such lawyer written notice of your intent to request entry of default, and a reasonable time within which defendant's pleading must be filed to prevent your doing so.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) § 5:73, p. 5-19 (rev. #1, 2008) as quoted in Fasuyi, supra, 167 Cal.App.4th at p. 702, 84 Cal.Rptr.3d 351.)

(Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135 [emphasis added].) Defense counsel’s emails to Plaintiff’s counsel explained their assumption that no default would be taken without such a warning. (Motions, Karapetian Decl., Exhs. A-B.) Nevertheless, Plaintiff’s counsel entered moving Defendants’ default without any warning to defense counsel and the defaults must be vacated as a result.

Conclusion

Defendants Kenarik Boghouzian and Seroj Boghouzian Motions to Vacate Entry of Default are GRANTED. DEFENDANTS KENARIK BOGHOUZIAN AND SEROJ BOGHOUZIAN ARE TO FILE AND SERVE THEIR ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

Moving party to give notice.