Judge: Robert S. Draper, Case: BC684340, Date: 2023-05-02 Tentative Ruling
Case Number: BC684340 Hearing Date: May 2, 2023 Dept: 78
Superior Court of California
County of Los Angeles
Department 78
SUSANNAH O’BRIEN, et al.,
Plaintiffs,
vs.
JOHN RICHARD ROGERS, et al.,
Defendants. Case No.: BC684340
Hearing Date: May 2, 2023
[TENTATIVE] RULING RE:
PLAINTIFFS SUSANNAH O’BRIEN AND SAHARA VISION PRODUCTIONS, LLC’S MOTION TO SET ASIDE/VACATE DEFAULT.
Plaintiffs Susannah O’Brien and Sahara Vision Productions, LLC’s Motion to Set Aside/Vacate Default is GRANTED.
The default against defendant Don Frederick Shefte is hereby vacated and pursuant to the request of Plaintiff Defendant Don Frederick Shefte is DISMISSED WITH PREJUDICE.
The Court Sets an OSC Re: Why the Remaining Defendants Should Not Be Dismissed for Failing to Bring the Defendants to Trial Within 5 years (plus six months) pursuant to Code of Civil Procedure Section 581(g), 583.210 and 583.250; and OSC Re: Why Defendant Tom Sims Should not be Dismissed for Failure to Serve within years pursuant to Code of Civil Procedure Sections 581(g), 583.210, and 583.250; and OSC Re: Why Remaining Defendants Should Not be Dismissed for Failure to Request Entry of Default Judgment pursuant to Code of Civil Procedure Section 581(g) and 583.410, as well as California Rule of Court Rule 3.110(h) for June 5, 2023 at 8:30 a.m.
Briefing on the five year issue, briefing on the Sims issue, as well as any default judgment paperwork, must be filed at least five court days in advance of the OSC date.
Moving party to provide notice to Defendant Don Frederick Shefte.
FACTUAL BACKGROUND
This is an action for breach of contract and fraud. The Complaint alleges as follows.
Plaintiff Susannah O’Brien (“O’Brien”) is the CEO of plaintiff Sahara Vision Productions, LLC (together, “Plaintiffs”). (Compl. ¶ 2.) In November 2014, defendant John Richard Rogers (“Rogers”), an agent of defendant Hannover House, Inc. (“Hannover”), approached O’Brien about representing her for her first film. (Compl. ¶ 19.) Rogers told O’Brien that he could secure a lucrative movie licensing deal with Netflix on the condition that Plaintiffs advanced $13,000 for marketing and advertising of the film. (Compl. ¶ 20.) Shortly thereafter, the parties entered into a contract memorializing the agreement, and O’Brien sent Hannover’s President and CEO, defendant Erick Parkinson (“Parkinson”) the $13,000 advance. (Compl. ¶ 22.)
Defendants took many steps in the marketing process that upset O’Brien, including altering the advertising posters without her permission, and listing Hannover employees as producers of the movie though they were not. (Compl. ¶ 23.)
The film was eventually released late, and with minimal marketing. (Compl. ¶ 27.) Parkinson has since asked O’Brien for more money but has not shared any of the film’s revenue with O’Brien. (Compl. ¶ 29.) Additionally, Defendants have continually lied to O’Brien about the success of the film, and their efforts in marketing it. (Compl. ¶ 34.)
Plaintiffs allege that Defendants have distributed the film without sharing any of the proceeds with Plaintiffs. (Compl. ¶ 39.)
PROCEDURAL HISTORY
On November 20, 2017, Plaintiffs filed the Complaint asserting eleven causes of action:
1. Breach of Contract;
2. Breach of Implied Covenant of Good Faith and Fair Dealing;
3. Breach of Fiduciary Duties;
4. Conversion;
5. Fraud and Fraudulent Misrepresentation;
6. Unjust Enrichment;
7. Intentional Misrepresentation;
8. Negligent Misrepresentation;
9. Fraudulent Concealment;
10. Unfair Business Practices; and,
11. Accounting
On September 6, 2019, Plaintiffs filed a Notice of Settlement as to Rogers and defendant XVIII Entertainment LLC.
On October 18, 2021, default was entered against defendant Don Fredrik Shefte (“Shefte”).
On September 2, 2022, an OSC Re: Default Judgment was heard. At that hearing, the Court denied Plaintiffs’ Request for Default Judgment as the proposed default judgment did not include Shefte.
On February 1, 2023, Plaintiffs filed the instant Motion to Set Aside/Vacate Default against Shefte.
No Opposition has been filed.
DISCUSSION
I. MOTION TO VACATE DEFAULT
Plaintiffs move to vacate the default against defendant Don Fredrik Shefte pursuant to Code of Civil Procedure section 473(b).
CCP § 473(b) allows a court to vacate a prior order upon a showing that the order was entered due to a party’s mistake, inadvertence, surprise, or excusable neglect. Additionally, the motion “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” The terms mistake, inadvertence, surprise, and excusable neglect which warrant relief under Code of Civil Procedure § 473(b) are defined as follows:
Mistake is not a ground for relief under section 473, subdivision (b), when ‘the court finds that the “mistake” is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law ....’ [Citation] Further, ‘[t]he term “surprise,” as used in section 473, refers to “some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” [Citation] Finally, as for inadvertence or neglect, ‘[t]o warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.’ [Citation] (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229-230.)
Here, Plaintiffs argue the Court should vacate Shefte’s default as Shefte is currently in bankruptcy proceedings. Plaintiff state that they did not realize that Shefte had filed for bankruptcy until well after the requested default against him. Plaintiffs cannot enter default judgment against the remaining defendants while Shefte remains in default; however, Plaintiffs cannot dismiss Shefte without vacating his default.
Plaintiffs note that at the October 21, 2022, Order to Show Cause Re: Default, the Court ordered Plaintiffs to file the instant motion so that default judgment could be entered.
The Court finds that good cause exists to vacate Shefte’s default, as Plaintiffs’ Counsel was excusably mistaken as to Shefte’s bankruptcy status at the time Plaintiffs requested default. In addition, though this motion is filed well after Default was entered, the Court notes that it was filed shortly after the Court instructed Plaintiffs to vacate Shefte’s default by noticed motion.
Accordingly, Plaintiffs’ Motion to Vacate Default against defendant Don Fredrik Shefte is GRANTED.
DATED: May 2, 2023
________________________________
Hon. Jill T. Feeney
Judge of the Superior Court
