Judge: Ronald F. Frank, Case: 22TRCV00128, Date: 2023-02-07 Tentative Ruling
Case Number: 22TRCV00128 Hearing Date: February 7, 2023 Dept: 8
Tentative Ruling¿
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HEARING DATE: February 7, 2023¿¿
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CASE NUMBER: 22TRCV00128
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CASE NAME: Shamar
Jackson v. Dasho II, LLC
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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) Defendants’ Motion to Set Aside/Vacate Entry of Defaults
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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. Defendants Susana Kechedzian and Trendsetters Plus Inc. assert
that they have no relation to Dasho II, LLC or to the aforementioned subject
property. Defendants assert that this confusion began as a result of this
mistake made by the Plaintiff himself.
Plaintiff
has since 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 two Proofs of Service by substitute
service, one as to Defendant Trendsetters, indicating service on its registered
agent Ms. Kechedzian, and the other as to Susana Kechedzian as an individual
defendant.
On
August 12, 2022, Plaintiff filed a Request for Entry of Default against Susanna
Kechedzian. The Clerk entered default on that same day. On August 24, 2022,
Plaintiff filed a Request for Entry of Default against Trendsetters Plus, Inc.,
and the Clerk entered the default that day. On September 2, 2022, Plaintiff
filed an updated entry of default against Trendsetters Plus, Inc. The case was
reassigned from Torrance to Inglewood, and it appears the request for a court
judgment filed in Torrance was not acted upon.
Defendants
contend that their attorney responded to Plaintiff’s attorneys asking for
information about the substance of the case in order to be able to respond to a
global offer to settle. Defendants assert that their attorney received no
response (See Exhibit C, pg. 2.) Defense
counsel also sought an agreement to set aside the clerk’s default. (Exhibit C, pg. 2.) Defendants clam that they
received no response. On November 4, 2022, Defendants claim their attorney sent
a follow-up email (Exhibit C, pg. 3.) A month later, Defendants claim they spoke
with Plaintiff’s new attorney, Cody Cooper, Esq., to ask if he would be willing
to set aside a default, but as of the time this motion was field they received
no response.
B.
Procedural
On December 16, 2022, Defendants
filed this Motion to Set Aside/Vacate. To date, no opposition has been filed. While the motion to vacate has been pending,
Plaintiff’s counsel filed for and was granted permission to be relieved as
counsel of record. Accordingly, Mr. Jackson is currently representing himself.
II. ANALYSIS¿
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A.
Legal Standard
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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).)¿
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“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.)¿
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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, Defendants seek 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.
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Based on the foregoing and in the
absence of any opposition, Defendants’ Motion to Set Aside the Clerk’s defaults
under Code of Civil Procedure § 473(b) is GRANTED.¿