Judge: Robert B. Broadbelt, Case: 21STCV41542, Date: 2023-02-02 Tentative Ruling

Case Number: 21STCV41542    Hearing Date: February 2, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Jeff Bohbot p/k/a Jeff Hamilton

RESPONDING PARTY:       Plaintiff Ryan I. Hester, p/k/a Phree

Motion to Vacate and Set Aside Default

The court considered the moving, opposition, and reply papers filed in connection with this motion.

DISCUSSION

Defendant Jeff Bohbot p/k/a Jeff Hamilton (“Defendant”) moves the court for an order setting aside the default entered against him on February 23, 2022, by plaintiff Ryan I. Hester p/k/a Phree (“Plaintiff”), on the ground that default was entered against Defendant due to Defendant’s counsel’s mistake, inadvertence, surprise, or neglect.  (Defendant’s motion, filed December 1, 2022, p. 6:13-14.)  Alternatively, Defendant moves to set aside the default on the ground that Plaintiff’s request for default was withdrawn on August 15, 2022.  Defendant has submitted a proposed answer to Plaintiff’s Complaint.  (Bohbot Decl., Ex. D.)

Code of Civil Procedure section 473, subdivision (b) “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.)  The mandatory provision provides that “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 own 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).)  “‘Under this provision, a party is relieved from the consequences of his or her attorney’s mistake, inadvertence, surprise, or neglect.  Relief is available regardless of whether the attorney’s neglect is excusable.  [Citations.]  Moreover, if the requirements of this provision are met, then relief is mandatory.  [Citations.]’”  (Huens v. Tatum (1997) 52 Cal.App.4th 259, 262-263.)

First, the court finds that Plaintiff’s August 15, 2022 “Notice of Withdrawal of Plaintiff’s Request for Entry of Default against Defendant Jeff Bohbot” did not result in the default being set aside.  Default had already been entered by the clerk on February 23, 2022, and could only be set aside or vacated by an order of the court.

Second, the court finds that Defendant has met his burden of showing that default was entered against him on February 23, 2022 as a result of Defendant’s counsel’s mistake, inadvertence, surprise, or neglect and therefore grants Defendant’s motion.  (Code Civ. Proc., § 473, subd. (b).)

In support of his motion, Defendant submits the declaration of attorney Sholom Goodman (“Goodman”), who states the following: (1) although he does not maintain a regular litigation practice, he agreed to represent Defendant in this action as a friend and business associate; (2) upon receiving a copy of the summons and complaint and discussing this matter with Defendant, Goodman believed that Defendant had not been properly served; (3) he advised Defendant that, since he had not been properly served, Defendant did not have to answer the complaint and instead would move to quash service of the summons and complaint; (4) Goodman regrets advising Defendant that he did not have to answer the complaint; (5) he was not aware of the Proof of Service that was filed by Plaintiff, and had he been aware of the Proof of Service, he would have investigated the matter further; and (6) based on the mistaken belief that Defendant had not been served, he prepared Defendant’s motion to quash service of the summons and complaint.  (Goodman Decl., ¶¶ 3, 8-10, 12, 13-14, 18, 16.)  Goodman also states that he (1) “take[s] responsibility for [his] failure to review the filed Proof of Service and for [his] strategy to move to quash service of the complaint rather than file an answer and proceed on the merits” and (2) “acknowledge[s] [his] mistake….”  (Goodman Decl., ¶¶ 20, 24.)

The court finds that Goodman’s statements constitute an admission of fault which entitles Defendant to mandatory relief.  The court notes that Plaintiff contends that Goodman’s declaration establishes only that his mistake was believing Defendant when he said he had not been served with the summons and complaint, which is insufficient to support a request for mandatory relief.  (Cowan v. Krazyman (2011) 196 Cal.App.4th 907, 916 [finding that counsel’s declaration, which stated that he “reasonably believed” his client’s representations suggested that his client, rather than the attorney, was the cause of the default, and counsel’s mistake was in believing his client].)  The court disagrees with this interpretation of Goodman’s declaration.  Although Goodman does state that he had a mistaken belief that Defendant had not been served, Goodman also states that he “fail[ed] to review the filed Proof of Service” and therefore failed to investigate the matter further.  (Goodman Decl., ¶¶ 20, 13-14.)  Goodman advised Defendant that he did not have to answer Plaintiff’s complaint and moved forward with filing the motion to quash on February 23, 2022, instead of filing an answer, due, at least in part, to Goodman’s failure to review the filed documents and discover the Proof of Service.  (Goodman Decl., ¶¶ 10, 16, 20.) 

If relief is granted based on an attorney’s affidavit of fault, the court shall “direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”  (Code Civ. Proc., § 473, subd. (b).)  Plaintiff requests attorney’s fees and costs in the amount of $24,350.  The court finds that $17,150 (24.5 hours x $700 hourly rate) is a reasonable amount of legal fees and costs to award to Plaintiff.  (Rothschild Decl., ¶ 12 [counsel expended 9 hours to prepare the opposition to this motion and appear at the hearing, 1.5 hours to prepare the case management statement and status report addressing the default, 4 hours in attempts to resolve the default with Goodman, and 10 hours to prepare default judgment documents].)

ORDER

            The court grants defendant Jeff Bohbot p/k/a Jeff Hamilton’s motion to vacate and set aside default.

The court orders that the default entered against defendant Jeff Bohbot p/k/a Jeff Hamilton on February 23, 2022, is set aside pursuant to Code of Civil Procedure section 473, subdivision (b).

The court orders defendant Jeff Bohbot p/k/a Jeff Hamilton to file the proposed answer to the complaint, attached as Exhibit D to the declaration of defendant Jeff Bohbot p/k/a Jeff Hamilton, no later than five days from the date of this order.

The court orders attorney Sholom Goodman, Esq. to pay to plaintiff Ryan I. Hester p/k/a Phree legal fees and costs in the amount of $17,150 within 30 days of the date of service of this order.  (Code Civ. Proc., § 473, subd. (b).)

The court vacates the Order to Show Cause re: entry of default judgment set for March 9, 2023.

The court sets a Case Management Conference on ____________, 2023, at 8:30 a.m., in Department 53.

The court orders defendant Jeff Bohbot p/k/a Jeff Hamilton to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 2, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court