Judge Michael E. Whitaker, Case Number: 24SMCV06175, Date: 2025-05-29 Tentative Ruling

Judge: Michael E. Whitaker, Case: 24SMCV06175, Date: 2025-05-29 Tentative Ruling

On December 18, 2024, Plaintiff Dmitri Triphon (“Plaintiff”) filed suit against Defendants Ge J. Cohen aka Grace Cohen and Carmiel Cohen, alleging three causes of action for (1) fraudulent transfer in violation of Uniform Voidable Transfer Act Civil Code § 3439.04(A)(1); (2) constructive fraudulent transfer in violation of Uniform Voidable Transfer Act Civil Code § 3439.04(A)(2); and (3) imposition of constructive trust. The Proof of Service indicates Defendant Carmiel Cohen (“Defendant”) was served via substituted service on January 30, 2025, and default was entered against Defendant on March 19, 2025.

Defendant now moves to set aside the entry of default. Plaintiff opposes the motion.

“Proceeding to judgment in the absence of a party is an extraordinary and disfavored practice in Anglo–American jurisprudence: The policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.” (Au-Yang v. Barton (1999) 21 Cal.4th 958, 963 [cleaned up].)

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.4^th 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.)

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.”

(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.)

Plaintiff contends this lawsuit is related to a prior arbitration between the parties, from which the arbitration award was confirmed on March 20, 2025, and judgment entered thereon on April 10, 2025 in Los Angeles Superior Court Case No. 20STCV00997. In support of the motion, Defendant advances the Declaration of Carmiel Cohen, which provides:

3. As counsel for Plaintiff knows from sworn testimony I gave in the First Case, although I am the record owner of the house at 6460 Colgate Ave., Los Angles, California ("Colgate Property"), I do not reside in the house as it is rented to two women. The only portion of the property I occupy when I am in Los Angles is the garage which has been converted into a small living space.

3. In or about the beginning of February 2025, I briefly returned to Los Angeles from Texas, and one of the women who lives in the house gave me a package of mail which included a sealed envelope. Much later when I was back in Texas, I opened the mail and the sealed envelope which did contain the lawsuit. However, as it was Mr (sic) Lewin's law firm and the caption was Mr (sic) Tripon, I thought it related to the First Case, and thought nothing of it. My mail from the Colgate property is not forwarded to me as I have no permanent address in Texas.

4. I did not return to California until April 11, 2025 when I briefly retuned for the Passover Holiday. Upon looking at my mail at the Colgate Property I found two Requests for Entry of Default, one dated March 14, 2025 and one dated March 1, 2025 but no copy of the Summons and Complaint.

5. The law firm of Schreiber & Schreiber, Inc. has represented me for several years and represented me in the First Case. Once I discovered the legal papers, I immediately contacted Edwin Schreiber, my attorney who represented me in the First Case, and brought the two Requests for Entry of Default to him the next day, April 12, 2025, in an effort to determine what was happening with the case. Naturally, I have no desire to have a default entered against me as I believe I have good defenses to this case, and, and have requested that my attorneys defend this lawsuit. I did not even know I had been defaulted, or for that matter allegedly properly served, until April 12, 2025 when my attorney checked the Court’s records and informed me of the default.

6. I left for Texas on April 22, 2025, and have not returned to California since.

(Cohen Decl. ¶¶ 3-6.) Defendant also advances the attorney declaration of Edwin C. Schreiber, which corroborates Defendant’s narrative as follows:

2. On April 11, 2025 I was contacted Mr (sic) Cohen about the default papers he had found in his mail upon returning to California for the Passover Holiday. He brought (sic) my home on Saturday April 12, 2025, two Requests for Entry of Default one dated (sic)14, 2025 and one dated April (sic)19, 2025. I then went to my computer and accessed the Los Angeles Superior Court web page and ascertained that the Request for Entry Default dated April (sic) 14, 2025 had been rejected, but default had been entered on the April (sic) 19, 2025 Request for Entry of Default. I also used the web site to obtain a copy of the service of process and ascertained the service was based upon substituted service which alleged a copy of the Summons and Complaint had been mailed to Mr (sic) Cohen, although as set forth in his attached Declaration, no mail copy was in his mail when he returned to California.

3. On April 14, 2025 I emailed Plaintiff’s attorneys Rodney Lewin and Chandler Bartlett requesting that they stipulate to setting aside Mr (sic) Cohen's default. On April 14, 2025 Mr (sic) Bartlett responded by email that he would only stipulate to setting aside the default if I accepted service on Ge J. Cohen. On April 15, 20251truthfully responded to Mr (sic) Bartlett that I could not accept service as I have never represented Ge J. Cohen, and, in fact I do not know her or her whereabouts, and that I would be making a motion to vacate the default. True and correct copies of these three email chain is attached hereto as Exhibit A and made a part hereof.

4. A true and correct copy of the Answer I will file on Mr (sic) Cohen's behalf is attached hereto as Exhibit B and made apart hereof.

Although Defendant advances an attorney declaration in support of the motion, the Court does not find that the default was entered due to attorney mistake, inadvertence, surprise, or excusable neglect. Notwithstanding, the Court does find that Defendant has demonstrated that relief is warranted under the discretionary provisions of the statute.

In opposition, Plaintiff argues that Defendant’s neglect in timely responding to this lawsuit was inexcusable because when Defendant saw the caption page, he assumed that the summons was related to the prior arbitration proceedings and case. The Court disagrees. Under the circumstances, where the parties were previously involved in litigation, and the summons and complaint for the new lawsuit—which contains a caption very similar to the prior lawsuit—and which was mailed to an address Defendant no longer regularly occupies, it was an excusable mistake that Defendant confused the new summons and complaint with paperwork pertaining to the prior lawsuit.

Further, as discussed above, California has a strong public policy in favor of trying cases on the merits.

For the foregoing reasons, the Court grants Defendant’s motion and orders the default entered on March 19, 2025 set aside.

Defendant shall file and serve the proposed answer attached to the Schrieber Declaration on or before June 20, 2025.

Further, on the Court’s own motion, the Case Management Conference is continued to

September 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).

Further, Defendant shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

[1] Apparently, Counsel did not proofread the declaration as it contains numerous errors including the dates of the Requests for Entry of Default. To wit, the Court entered the default against Defendant on March 19, 2025, not April 19, 2025.