Judge: Michael E. Whitaker, Case: 24SMCV02219, Date: 2024-10-21 Tentative Ruling
Case Number: 24SMCV02219 Hearing Date: October 21, 2024 Dept: 207
TENTATIVE RULING
DEPARTMENT 207
HEARING DATE October 21,
2024
CASE NUMBER 24SMCV02219
MOTION Motion
to Set Aside Entry of Default
MOVING PARTY Defendant
Georgi Aghamyan
OPPOSING PARTY none
MOTION
On May 10, 2024, Plaintiff JPMorgan Chase Bank, N.A. (“Plaintiff”)
filed suit against Defendants Jordin Trade, Inc. (“Jordin”) and Georgi Aghamyan
(“Aghamyan”), alleging four causes of action for (1) breach of contract
(against Jordin); (2) breach of guaranty (against Aghamyan); (3) breach of
contract (against Jordin); and (4) breach of guaranty (against Aghamyan)
stemming from two loans.
The proof of service indicates Aghamyan was served by substitute
service by leaving the documents with “Jane Doe,” as “the employee in charge”
at an address in Lancaster, California, and subsequently mailing copies of the
documents to Aghamyan at that same address.
On September 6, 2024, as Plaintiff requested, the Court entered
default as to both Defendants. Aghamyan
now moves to set aside the default and to quash the summons. The motion is unopposed.
ANALYSIS
I.
DISCRETIONARY AND MANDATORY RELIEF
Code of Civil procedure section 473
“includes a discretionary provision, which applies permissively, and a
mandatory provision, which applies as of right.” (Minick v. City of Petaluma
(2016) 3 Cal.App.5th 15, 25 (hereafter Minick).) “Section 473 is a remedial statute to be
“applied liberally” in favor of relief if the opposing party will not suffer
prejudice. Because the law strongly
favors trial and disposition on the merits, any doubts in applying section 473
must be resolved in favor of the party seeking relief from default. Unless inexcusable neglect is clear, the
policy favoring trial on the merits prevails.”
(Minick, supra, 3 Cal.App.5th at p. 24 [cleaned up].)
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 Ca.App.4th 712, 721 [motion
for relief under section 473 must be brought “within a reasonable time, in no
case exceeding six months”]). “The
six-month limit is mandatory; a court has no authority to grant relief under
section 473, subdivision (b), unless an application is made within the
six-month period.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340,
citations omitted.)
A.
DISCRETIONARY
RELIEF
Per Code of Civil Procedure
section 473, subdivision (b), 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.”
B.
MANDATORY
RELIEF
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.
(Code Civ. Proc., § 473, subd. (b).) “In considering whether the trial court
properly denied relief under section 473(b), the first question is the
sufficiency of defendants' showing of attorney fault, if believed, to trigger
the mandatory relief provisions of that statute.” (Standard Microsystems Corp. v. Winbond
Electronics Corp. (2009) 179 Cal.App.4th 868, 896, disapproved on other
grounds by Even Zohar Construction & Remodeling, Inc. v. Bellaire
Townhouses, LLC (2015) 61 Cal.4th 830 (hereafter Standard).) “Under section 473(b), a party is entitled to
relief from a default and resulting judgment whenever, on timely application
for relief, his attorney ‘attest[s] to his or her mistake, inadvertence,
surprise, or neglect’ in connection with the default or the judgment.” (Ibid.)
In support of the motion, Aghamyan provides his own declaration, and
the declaration of his counsel. Aghamyan
does not dispute that the address at which he was served is his home and that
he received the service. Rather,
Aghamyan argues that he was confused by the papers because he has no connection
to Jordin Trade, Inc. and did not take out a loan from Chase Bank. Instead of retaining an attorney, he first
tried to file a police report that someone was using his name. The Aghamyan declaration provides:
2. My primary language is Armenian, Eastern
dialect. I therefore did not then seek advice of an attorney. Instead, on July
7, 2024, I took the papers to the Los Angeles County Sheriff s Department in
Lancaster to file a report that someone was using my name. I was told that the
Sheriff's Department could not do anything about it, because it was a civil
matter. On July 8,2024, I went to the Superior Court in Santa Monica at the
address listed on the summons. I went to the clerk's office and was directed to
a courtroom. I do not recall the courtroom. At that time, I spoke with a clerk,
attempting to explain to the clerk that Chase Bank had named the wrong person
and that I was not part of Jordin Trade, Inc. The clerk patiently explained to
me that I should contact an attorney for assistance.
3. I thereafter sought out the advice from those
in my circle of friends, who referred me to Ara Joe Keropian. I made an
appointment for July 18, 2024 and discussed the matter with him.
4. After July 18, 2024, I had collected documents
and things for Mr. Keropian to show that I did not obtain a loan using Jordin
Trade, Inc, and provided what documents I had.
(Aghamyan
Decl. ¶¶ 2-4.)
Further, Aghamyan argues that, upon retaining counsel, his attorney
was in the process of trying to connect with Plaintiff’s counsel to explain the
apparent mistaken identity when, without warning, Plaintiff requested and was
granted an entry of default. The
Keropian declaration provides:
2. I met with Georgi Aghamyan on July 18, 2024. I
had not agreed to represent Mr. Aghamyan at that time, but required to review
documentation, which Mr. Aghamyan did not have at that time, but later provided
to me.
3. Once I obtained some documentation regarding
Mr. Aghamyan’s identity, that of Jordin Trade, Inc., and so forth, I first
reached out to Michele Sabo Assayag who was listed as lead attorney on the
caption of the complaint and sent an email to her advising her of my
representation of Mr. Aghamyan and that he never pulled a loan from Chase Bank.
I was thereafter referred to Joshua Partington, who wrote back, “Thanks very
much, Mr. Keropian. I will forward your email to the Bank to discuss and we
will get back to you. Thanks!” A true and correct copy of my email exchange
with opposing counsel is attached hereto as Exhibit “1”.
4. On August 14, 2024, I received an email from
opposing counsel asking me to call him regarding some information regarding Mr.
Aghamyan. Thereafter, I made numerous attempts to reach Mr. Partington via
telephone but was not able to reach him. On August 22, 2024, for example, I
emailed Mr. Partington, “Hey Joshua, I seem to be calling you at the wrong
times. Give me a call at 818 - 724-8880 whenever you get a chance. Thanks,”
5. Because I thought we might be able to resolve
the matter without litigation and the conversations were friendly, courteous
and professional, asking for an extension of time within which to respond to
the complaint slipped my mind. I was more focused on getting to the facts and
believed that once Chase Bank saw that this matter was a case of identity
theft, that it would be resolved with respect to Georgi Aghamyan.
6. I never received any notice, either verbal or
written, from opposing counsel that Plaintiff was intending to take Defendant’s
default or would take his default if an answer was not filed during our
negotiations. I recall still attempting to reach opposing counsel after August
22, 2024, during the time that I was waiting for opposing counsel to get back
to me in regard to his August 13, 2024 email advising me: “Thanks very much,
Mr. Keropian, I will forward your email to the Bank to discuss and we will get
back to you. Thanks!”
7. On September 12, 2024 at 5:24 p.m., I received
an email from opposing counsel, stating: “I spoke with my client and they do
not believe that the identity theft that has been alleged by your client in
fact occurred. Happy to discuss further. Please let me know a time we can speak
tomorrow. Thank you.”
8. As stated above, I had no advance warning or
notice that a default would be entered against Mr. Aghamyan unless an answer
was filed and was never informed by opposing counsel that Mr. Aghamyan’s
default was taken on September 6, 2024. Mr. Aghamyan made an appointment and
came in with the request for entry of default, whereupon, I immediately emailed
opposing counsel on September 13, 2024: “Joshua, I’m not sure why your office
filed a request for default for Mr. Aghamyan, especially considering I've been trying
to contact you regarding this issue for the last few weeks, and left messages
and emails. Nevertheless, I intend to set aside the default now (with proposed
answer), let me know if you'd like to stipulate to it, and continue our
discussion whether your client has filed against the appropriate person. If
your client does indeed have something they want to see regarding my client's
identity, I will be more than happy to provide. Thanks,”
9. I certainly recognize that it was a fault on
my part not to request an extension of time. But given the tenor of my
communications with Plaintiff’s counsel in that they were friendly, courteous,
professional and negotiations were being conducted in good faith, I maintained
a relaxed attitude toward procedural issues. Quite frankly, under the
circumstances, I expected a warning before my client’s default was taken.
10. A proposed answer is attached hereto as
Exhibit “B”
(Keropian
Decl. ¶¶ 2-10.)
Because default was entered after Counsel was retained and actively communicating
with Plaintiff’s counsel, the Court finds the failure to request and obtain an
extension of time to respond to the complaint was Counsel’s. However, in light of the parties’ ongoing
communications, the Court finds that Counsel’s neglect was excusable.
Therefore, because the Court finds that the default was entered due to
Counsel’s excusable neglect, and because the request to set aside was made
within six months of entry of default, relief is mandatory.
CONCLUSION
Therefore, having found the motion
timely and that default was entered due to Counsel’s excusable neglect, the
Court grants the motion and sets aside the default of September 6, 2024 entered
against Aghamyan.
Aghamyan shall file and serve a
response to the complaint on or before November 15, 2024.
Further, on the Court’s own motion,
the Court vacates the Order to Show Cause re Entry of Default Judgment set on January
15, 2025.
Further, on the Court’s own motion, the
Court sets a Case Management Conference on January 15, 2025 at 8:30 A.M. in
Department 207. All parties shall comply
with California Rules of Court, rules 3.722, et seq., regarding Initial and
Further Case Management Conferences. In particular,
all parties shall adhere to the duty to meet and confer (Rule 3.724) and to the
requirement to prepare and file Case Management Statements (Rule 3.725).
The Clerk of the Court shall provide
notice of the Court’s orders.
DATED:
October 21, 2024 ___________________________
Michael E. Whitaker
Judge
of the Superior Court