Judge Ronald F. Frank, Case 22TRCV00128 2023-01-10 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV00128, Date: 2023-01-10 Tentative Ruling

Case Number: 22TRCV00128 Hearing Date: January 10, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: January 10, 2023¿¿

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CASE NUMBER: 22TRCV00128

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CASE NAME: Shamar Jackson v. Susanna Kechedzian; Trendsetters Plus Inc.

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MOVING PARTY: Defendants, Susanna Kechedzian & Trendsetters Plus, Inc.

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RESPONDING PARTY: None

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TRIAL DATE: None set¿

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MOTION:¿ (1) Motion to Set Aside/Vacate Entry of Defaults

Tentative Rulings: (1) GRANT; Proposed Demurrer cannot be filed without a hearing date specified on its cover page

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I. BACKGROUND¿¿

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A. Factual¿¿

Plaintiff filed his original Complaint on February 18, 2022 and listed Dasho II, LLC as a Defendant and a subject property located at 8525 S Sepulveda Blvd., Los Angeles, CA 90045. Upon discovery that Dasho II was not the true owner of the subject property, Plaintiff filed a First Amended Complaint on June 14, 2022. The FAC removed Dasho II, LLC and added the current Defendants Susanna Kechedzian and Trendsetters Plus, Inc. On July 8, 2022, Plaintiff filed Proofs of Service by substitute service as to Susana Kechedzian and Trendsetters.

On August 12, 2022, Plaintiff filed a Request for Entry of Default against Susanna Kechedzian. The Clerk entered default as to Ms. Kechedzian on that same day. On August 22, 2022, the Court issued a standard Order to Show Cause for failure to file a CCP 585 Declaration and default judgment package, initially setting the OSC hearing for October 3, 2022. On August 24, 2022, Plaintiff filed a second Request for Entry of Default, this time against Trendsetters Plus, Inc. The Clerk’s Default was entered against Trendsetters that day.

On September 26, 2022, Plaintiff filed a Request for Court Judgment with CCP section 585 Declaration, the same date this matter was reassigned from Torrance to Inglewood. At the November 2, 2022, hearing on the OSC re entry of default, counsel appeared for the defaulted defendants and the Court vacated the OSC, deferring action of the previously submitted default package. The Court thereafter scheduled a further status conference in December, anticipating that the defaulted defendants would immediately file a motion to vacate the clerk’s defaults. That motion was not filed until December 16, 2022.

According to defense counsel in support of the Motion to vacate the clerk’s defaults, back in July of 2022 defense counsel contacted Plaintiff’s attorneys to tell them Defendants were in receipt of the Complaint, and that the court docket retrieved referred to a case styled Jackson v. Dasho II LLC rather than Jackson v. Kechedzian. Defendants claim that their attorney received no reply to an inquiry about the case against Dasho II. (Motion, Exhibit B). On September 26, 2022, Defendants claim that their attorney again reached out to Plaintiff’s attorneys to ask if they would set aside the default. On September 29, 2022, Defendants assert that Plaintiff’s attorney, Valerie Bradbury, Esq. (who has since left the firm) responded without acknowledging this attorney’s request and made a settlement offer (Motion, Exhibit C, page 1.)

Later that day, Defendants contend that their attorney responded to Plaintiff’s attorneys asking more about the substance of the case before replying to a global offer to settle. Defendants assert that their attorney received no response (See Exhibit C, pg. 2.) On October 10, 2022, defense counsel claims he against sought a stipulation to set aside the default. (Exhibit C, pg. 2.) Defendants clam that their attorney, again, received no response. On November 4, 2022, Defendants claim their attorney sent a follow-up email expressing his frustration (Exhibit C, pg. 3.) On December 14, 2022, Defendants note that their attorney spoke with Plaintiff’s new attorney, Cody Cooper, Esq., to ask once again if Plaintiff would agree to set aside the clerk’s defaults, but no response ever came. Accordingly, the instant motion was filed.

B. Procedural

On December 16, 2022, Defendants filed this Motion to Set Aside/Vacate. To date, no opposition has been filed. Approximately a week later, Plaintiff’s counsel field a motion to be relieved as counsel, with a hearing date after the hearing on the motion to vacate the defaults. Plaintiff’s counsel thereafter sought to advance the hearing date on the motion to be relieved but the Court denied the ex parte application on January 9, 2023.

II. ANALYSIS¿

A. Legal Standard

Under Code of Civil Procedure, section 473, subdivision (b), an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise, or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) 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).)¿

“It is the policy of the law to favor, wherever possible, a hearing on the merits, and appellate courts are much more disposed to affirm an order where the result is to compel a trial upon the merits than they are when the judgment by default is allowed to stand and it appears that a substantial defense could be made. Stated another way, 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.” (Weitz v. Yankosky (1966) 63 Cal.2d 849, 854–855.)¿

B. Discussion

Relief under Code of Civil Procedure section 473, subdivision (b) is mandatory when based on an attorney’s affidavit of fault; otherwise, it is discretionary. (English, 94 Cal.App.4th at 143.) When relief from default and default judgment is the attorney’s fault, the six-month period starts to run from the date of the entry of the default judgment. (Code Civ. Proc., § 473, sub. (b); Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 295.) Here, Plaintiff seeks to set aside the August 12, 2022 and August 24, 2022 requests for entry of default. Defendants’ counsel stated in his affidavit that a great deal of confusion was caused by plaintiff’s original complaint, but he recognized his part in the mistake, inadvertence, or neglect which caused the delay in filing a responsive pleading. (Declaration of Ara Sahelian, Esq (“Sahelian Decl.”), ¶ 10.)

Defendants meet the attorney affidavit requirement for mandatory relief, and have also brought this motion within the six- month time period requirement. Section 473(b) mandates that a motion for relief must be brought “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).)¿ This six-month time limitation is jurisdictional, and the Court has no power to grant relief under Section 473 once this time period has lapsed.¿ (Austin, supra, 244 Cal.App.4th at p. 928.)¿ Here, Defendants have sought relief within the six-month period.

Based on the foregoing, Plaintiff’s Motion to Set Aside under Code of Civil Procedure § 473(b) is GRANTED.¿

IV. CONCLUSION

Defendants’ Motion to Set Aside Request for Entry of Default is GRANTED. The proposed responsive pleading, a Demurrer, has no hearing date reserved. The Court further Orders that defense counsel FORTHWITH schedule and reserve a hearing date on the Demurrer and file and serve the Demurrer with its reserved hearing date, time and place specified on the cover page.

Moving party to give notice. ¿¿