Judge: Michael P. Linfield, Case: 22STCV35713, Date: 2023-04-18 Tentative Ruling

Case Number: 22STCV35713    Hearing Date: April 18, 2023    Dept: 34

SUBJECT:         Motion for Relief from Request for Entry of Default

Moving Party:  Defendant Vivera Pharmaceuticals, Inc.

Resp. Party:    None

Defendants’ Motion for Relief from Request for Entry of Default is GRANTED. The entry of default on Defendant Vivera Pharmaceuticals, Inc. is VACATED.

Defendants shall have 10 days from the issuance of this Order to file their Demurrer that was attached to their Motion.

BACKGROUND:

On November 10, 2022, Plaintiff Buchalter filed its Complaint against Defendants Vivera Pharmaceuticals, Inc., Paul Edalat, and Olivia Karpinski on causes of action arising from the Parties’ contractual relationship.

On January 13, 2023, by request of Plaintiff, the Clerk’s Office entered default on Defendant Vivera Pharmaceuticals, Inc.

On March 17, 2023, Defendants filed their Motion for Relief from Request for Entry of Default.

On April 4, 2023, Defendants filed their Notice of Non-Opposition.

ANALYSIS:

I.           Legal Standard

“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.” (Code Civ. Proc., § 473, subd. (b).)

II.        Discussion

Defendants move for the Court to set aside the default judgments and to allow for the filing of their Demurrer to the Complaint. (Motion, p. 5:11–14.) Defendants include a declaration from Farah Barghi, Defendant Vivera Pharmaceuticals, Inc.’s Director of Special Projects, that attests to the mistake, inadvertence, and excusable neglect on behalf of Defendants. (Motion, Decl. Barghi, ¶ 5.) Defendants also include a copy of their proposed Demurrer. (Motion, Ex. A.)

Although Defendants request that all defaults be vacated, there has only been a single entry of default on the corporate Defendant.  Default has not been entered against the individual Defendants, nor has default judgment been entered against any of the Defendants. Also, as the mistake, inadvertence, or excusable neglect was by one of the corporate Defendant’s representatives (and thus not by that Defendant’s attorney), it would not be appropriate to grant legal fees or costs here.

III.     Conclusion

Defendants’ Motion for Relief from Request for Entry of Default is GRANTED. The entry of default on Defendant Vivera Pharmaceuticals, Inc. is VACATED.

Defendants shall have 10 days from the issuance of this Order to file their Demurrer that was attached to their Motion.