Judge Robert B. Broadbelt, Case Number: 23STCV30798, Date: 2025-01-16 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 23STCV30798, Date: 2025-01-16 Tentative Ruling

MOVING PARTIES: Defendants Alkhemist LLC, Alkhemists DM, LLC, Dry Aged Denim, LLC, and James Chung

The court considered the moving and opposition papers filed in connection with this motion. No reply papers were filed.

Plaintiff Shiney’s (“Plaintiff”) filed this action on December 18, 2023, against defendants Alkhemist, LLC, Alkhemist DM, LLC, Alkhemists DM, LLC, Dry Aged Denim, LLC, and James Chung on December 18, 2023.

Several of the defendants’ defaults were entered by the clerk as follows: (1) Alkhemist, LLC’s default was entered on April 10, 2024; (2) Alkhemist DM, LLC’s default was entered on April 22, 2024; (3) James Chung’s default was entered on May 6, 2024; and (4) Dry Aged Denim’s default was entered on May 6, 2024.

Pursuant to Plaintiff’s request, the clerk dismissed defendants Alkhemists DM, LLC and Alkhemist M4 LLC on May 17, 2024. (May 17, 2024 Req. for Dismissal.)

On September 13, 2024, the court entered judgment by default in favor of Plaintiff and against defendants Alkhemist, LLC, Alkhemists DM, LLC,[1] Dry Aged Denim, LLC, and James Chung (“Chung”) (collectively, “Defendants”).

Defendants now move the court for an order setting aside and vacating the defaults and default judgment entered against them in this action on the ground that their defaults and default judgment was taken against them as a result of their mistake, inadvertence, surprise, or excusable neglect.

“[S]ection 473, subdivision (b) ‘contains two distinct provisions for relief from default’ [citation]—one makes relief discretionary with the court; the other makes it mandatory.” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438 [internal citation omitted].) Under the discretionary provision, “[t]he 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.” (Code Civ. Proc., § 473, subd. (b).) Under the mandatory relief provision, “[t]he 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.” (Ibid.)

First, the court finds that Defendants have not met their burden to show that the court may grant them the relief requested under the discretionary provision of section 473, subdivision (b) because Defendants filed this motion on December 17, 2024, which is more than six months after their respective defaults were entered on April 10, 2024 (defendant Alkhemist, LLC), April 22, 2024 (defendant Alkhemist DM, LLC), and May 6, 2024 (defendants Chung and Dry Aged Denim), and therefore their motion is untimely. (Code Civ. Proc., § 473, subd. (b); Jimenez v. Chavez (2023) 97 Cal.App.5th 50, 54 [concluding that the six-month period is 182 days or six calendar months, whichever period is longer], 59 [“Under the discretionary relief provision (§ 473(b)), a motion to set aside a default judgment must be made no more than ‘six months’ after the default—not the default judgment—is entered”].)

Second, the court notes that, although Defendants have only moved for relief under the discretionary provision of section 473, subdivision (b), Defendants have also filed a declaration from an attorney in support of their motion. (Notice of Mot., p. 1:26-27 [moving for relief based on mistake, inadvertence, surprise, or excusable neglect (i.e., discretionary relief)]; Mot., p. 3:10-15 [quoting discretionary provision of section 473, subd. (b)].)

The court finds, to the extent that Defendants contend that they are entitled to mandatory relief, that Defendants have not shown that entry of their defaults and the default judgment was “caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).) Specifically, although counsel states, in his declaration, that there was a “miscommunication” between counsel and defendant Chung as to whether Defendants had retained counsel, counsel did not state that it was his mistake. (Oh Decl., ¶¶ 3-4.) Instead, counsel states that (1) “Mr. Chung was under the mistaken belief that the retainer for this particular case was signed and retainer paid[,]” and (2) “Mr. Chung “was under the mistaken belief that him [sic] and his entities were being represented by [counsel] in this current action.” (Oh Decl., ¶ 4 [emphasis added].) As a result of defendant Chung’s mistake and failure to sign the retainer agreement, counsel ceased further representation of Defendants. (Ibid.) Thus, counsel’s declaration shows that the mistake that caused entry of the default and default judgment was on the part of defendant Chung. Further, although counsel appears to assert that counsel was surprised by entry of Defendants’ defaults and the default judgment, counsel did not state facts establishing that such surprise “caused” the default judgment to be entered against Defendants. (Code Civ. Proc., § 473, subd. (b); Oh Decl., ¶¶ 5-6.)

Thus, the court finds that Defendants have not submitted “an attorney’s sworn affidavit attesting to his or his mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).) Instead, Defendants’ counsel’s declaration states facts establishing that it was defendant Chung’s mistaken belief that Defendants were represented by counsel, such that it is the mistake of Defendants that caused their defaults and default judgment to be entered. (Ibid.; Martin Potts & Associates, Inc., supra, 244 Cal.App.4th at p. 442 [mandatory “relief is not available when the error is the client’s alone”]; Jimenez, supra, 97 Cal.App.5th at p. 57 [a party is entitled to mandatory relief “so long as the attorney affidavit of fault shows the error was the fault of the attorney rather than the client”].)

The court therefore denies Defendants’ motion. (Code Civ. Proc., § 473, subd. (b).)

The court denies defendants Alkhemist, LLC, Alkhemists DM, LLC, Dry Aged Denim, LLC, and James Chung’s motion to vacate and set aside default and default judgment.

[1] The court notes that defendant Alkhemists DM, LLC is a moving defendant. (Notice of Mot., p. 1:23-24.) However, as set forth above, the clerk dismissed that defendant from this action on May 17, 2024. (May 17, 2024 Req. for Dismissal, ¶¶ 1, 5 [Dismissal entered as to “Defendants Alkhemists DM, LLC”].) Thus, the motion to set aside the default and default judgment of Alkhemists DM, LLC is denied on the ground that Alkhemists DM, LLC did not have its default entered and has not had default judgment entered against it in this action. To the extent that the Defendants are moving to set aside the default and default judgment against defendant Alkhemist DM, LLC, the court has considered that request in ruling on this motion and finds, for the reasons set forth in this ruling, that Defendants have not demonstrated that they are entitled to relief.

shiney’s ; Plaintiff, vs. alkhemist, llc , et al.; Defendants.	Case No.:	23STCV30798

	Hearing Date:	January 16, 2025

	Time:	10:00 a.m.

	[tentative] Order RE: defendants’ motion to vacate and set aside default and default judgment