Judge: Melvin D. Sandvig, Case: 20STCV34931, Date: 2025-03-04 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F47, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2247.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 20STCV34931    Hearing Date: March 4, 2025    Dept: F47

Dept. F47

Date: 3/4/25

Case #20STCV34931

MOTION TO SET ASIDE DEFAULT & DEFAULT JUDGMENT

Motion filed on 7/9/24.

MOVING PARTY: Defendants Noel Fisher and Detail Music, LLC

RESPONDING PARTY: Plaintiff Jane Doe

NOTICE: ok

RELIEF REQUESTED: An order setting aside the defaults and default judgment entered against Defendants Noel Fisher and Detail Music, LLC.

RULING: The motion is granted as set forth below. 

SUMMARY OF FACTS & PROCEDURAL HISTORY

On 9/11/20, Plaintiff Jane Doe (Plaintiff) filed this action against Defendants Noel Fisher aka Detail (Fisher) and Detail Music, LLC (Detail Music) (collectively, Defendants) for: (1) Assault, (2) Battery, (3) Sexual Assault, (4) Sexual Assault, (5) False Imprisonment, (6) Intentional Infliction of Emotional Distress, (7) Negligent Infliction of Emotional Distress, (8) Gender Violence and (9) Violations of the Ralph Act.  After Fisher’s Special Motion to Strike the complaint was denied, on 1/12/22, Defendants answered the complaint. 

At the 11/1/23, hearing on Order to Show Cause Re: Sanctions for Defendants’ Failure to Appear where Defendants again failed to appear, the Court ordered Defendants’ answer stricken and entered defaults against Defendants.  (See 11/1/23 Minute Order).  On 2/15/24, the Court entered default judgment against Defendants in the amount of $3,071,852.38.  (See 2/15/24 Default Judgment).  On 2/26/24, Plaintiff served Notice of Entry of Judgment on Defendants.  (See Notice of Entry of Judgment filed 2/26/24).  On 3/5/24, an Abstract of Judgment was issued. 

On 7/9/24, Defendants filed and served the instant motion seeking an order setting aside the defaults and default judgment entered against Defendants Noel Fisher and Detail Music, LLC.  Plaintiff has opposed the motion.  No reply to the opposition has been filed.

ANALYSIS

CCP 473(b) provides, in relevant part:

“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. . . . No affidavit or declaration of merits shall be required of the moving party. 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, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.”

Although Plaintiff concedes that Defendants bring this motion based on “their attorneys’ alleged ‘mistake and neglect,’” Plaintiff contends that the motion should be evaluated under the discretionary provision of CCP 473(b).  (See Opposition, p.4:14-15; p.5:17-24).  The motion asks the Court to set aside the default judgment pursuant to CCP 473(b) because the hearing was missed as a result of the mistake and excusable neglect of Defendants’ counsel.  (See Motion, p.2:12-14).  Additionally, the motion is accompanied by a declaration from Defendants’ counsel attesting that the attorney’s conduct led to the defaults and default judgment against Defendants.  (See Guiab Decl.).  As such, the Court finds that Defendants seek relief under the mandatory provision of CCP 473(b) and evaluates the motion as such.

The Court finds attorney Guiab’s declaration regarding his belief that the November 2023 hearing was scheduled for 11/6/23 rather than 11/1/23 and that the parties had agreed to continue same to be credible.  (See Guiab Decl. and Ex.1 thereto).  Even if attorney Guiab’s neglect was not excusable, relief is still mandatory as there is no indication that attorney Guiab is attempting to “cover up” for failures on the part of the clients which actually led to the defaults and default judgment.  See Jimenez (2023) 97 CA5th 50, 57; Standard Microsystems Corp. (2009) 179 CA4th 868, 897 (disapproved on other grounds in Even Zohar Construction & Remodeling, Inc. (2015) 61 C4th 830, 845. 

Since the instant motion was made within 6 months of the entry of the default judgment and is accompanied by an attorney declaration of fault, relief is mandatory.  CCP 473(b); Sugasawara (1994) 27 CA4th 294, 297. 

Plaintiffs’ attorneys are entitled to an award of their reasonable compensatory legal fees and costs against attorney Guiab.  CCP 473(b).  The Court finds that the $27,760.00 in attorneys’ fees requested is unreasonable.  As such the Court awards $11,000.00 in attorneys’ fees (2 hours to attend the 11/1/23 OSC and MSC hearing + 8 hours to prepare the default judgment packet + 6 hours to prepare Notice of Entry of Judgment and obtain Abstract of Judgment, researching and seeking to Enforce Judgment + 5 hours to prepare opposition + 1 hour to prepare for and appear at the hearing on the motion for a total of 21 hours multiplied by an hourly rate of $500/hour).  The court also awards costs in the amount of $378.15.  (Kossoff Decl. ¶16).

CONCLUSION

The motion is granted.  The defaults entered on 11/1/23 and the default judgment entered on 2/15/24 are set aside and vacated.  The answer filed by Defendants Noel Fisher and Detail Music, LLC on 1/12/22 is reinstated. 

Attorney Olen Guiab is ordered to pay Plaintiff’s counsel attorneys’ fees and costs in the total amount of $11,378.15 within 30 days.