Judge Stephen P. Pfahler, Case Number: 19STCV37275, Date: 2024-08-12 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 19STCV37275, Date: 2024-08-12 Tentative Ruling

Case Number: 19STCV37275 Hearing Date: August 12, 2024 Dept: 68

Dept. 68

Date: 8-12-24

Case #: 19STCV37275

Trial Date: Not Set

VACATE DEFAULT

MOVING PARTY: Cross-Defendant, Sean Teague, pro per

RESPONDING PARTY: Unopposed/Cross-Complainant, James Davis

RELIEF REQUESTED

Motion to Vacate Default

SUMMARY OF ACTION

On October 18, 2019, Plaintiff Bradley Listermann filed a complaint against James Davis aka Mick Davis for 1. Slander/Defamation 2. Libel/Defamation 3. Intentional Interference of Contractual Relations. Following a denied motion to strike, the clerk entered a default against James Davis on April 20, 2020. Notwithstanding, on April 22, 2020, Davis answered, and along with Astra Verda Corporation and Paranotek filed a cross-complaint (1) Breach Of Fiduciary Duties; (2) Conversion; (3) Breach Of Contract; (4) Breach Of The Duty Of Good Faith And Fair Dealing; (5) Fraud; (6) Abuse Of Process; (7) Professional Negligence; (8) Unfair Business Practices against Bradley M. Listermann, Kevin Stephen Mills, Nikita Volchetskiy, and Ryan A. Woods.

On September 21, 2020, the court granted the motion of Davis to vacate the default. On October 9, 2020, Bradley Listermann filed a cross-complaint against Astra Verda Corporation and Paranotek for 1. Rescission Of Contract (Mistake) 2. Rescission Of Contract (Fraud) 3. Breach of Written Contract 4. Declaratory Relief. On April 16, 2021, the court granted Listermann’s motions for judgment on the pleadings as to the Davis, et al., cross-complaint. Davis, Astra Verda Corporation and Paranotek, LLC, filed a first amended cross-complaint for (1) Breach Of Fiduciary Duties; (2) Conversion; (3) Breach Of Contract; (4) Breach Of The Duty Of Good Faith And Fair Dealing; (5) Fraud; (6) Abuse Of Process; (7) Professional Negligence; (8) Unfair Business Practices on May 3, 2021. On July 2, 2021, the court granted Listermann’s sustained the demurrer to the first amended cross-complaint with 10 days leave to amend. On July 29, 22021, Davis, Astra Verda Corporation and Paranotek, LLC, filed a second amended cross-complaint for (1) Breach Of Fiduciary Duties; (2) Conversion; (3) Breach Of Contract; (4) Breach Of The Duty Of Good Faith And Fair Dealing; (5) Fraud; (6) Abuse Of Process; (7) Professional Negligence; (8) Unfair Business Practices.

On November 3, 2021, the court sustained the demurrer of Listermann to the second amended cross-complaint of James Davis without Leave to Amend, and with leave to amend as to Paranotek, LLC. On November 29, 2021, the parties filed a third amended cross-complaint for (1) Breach Of Fiduciary Duties; (2) Conversion; (3) Breach Of Contract; (4) Breach Of The Duty Of Good Faith And Fair Dealing; (5) Fraud; (6) Professional Negligence; (7) Unfair Business Practices. On February 24, 2022, the court sustained the demurrer of Listermann to the third amended cross-complaint without leave to amend.

On July 13, 2022, Sean Teague, in pro per, answered the third amended cross-complaint. On October 17, 2023, the court granted the motion of Cross-Defendants Benjamin Eppinga, Scott Eppinga, and Think Humble, Inc. to dismiss them from the third amended cross-complaint due to untimely service.

On April 2, 2024, the court entered defaults against cross-defendants Kevin Mills, Ryan Woods and Derrick DeRoom. On April 4, 2024, the court struck the answer of Sean Teague to the third amended cross-complaint due to the failure to appear for the final status conference.

On April 10, 2024, pursuant to a settlement agreement, the court dismissed James Davis and Does 1-20 without prejudice; cross-defendants Astra Verda Corporation and Paranotek, LLC dismissed without prejudice from the Listermann cross-complaint; dismissal of Listermann from the third amended cross-complaint of Astra Verda Corporation and Paranotek, LLC; and entered defaults as to Cross-Defendant Nikita Volchetskiy and Todd Myers.

RULING: Granted.

Cross-Defendant, Sean Teague, pro per, moves for relief from the April 4, 2024, order striking the answer to the third amended cross-complaint and entry of default, due to mistake, inadvertence, and/or excusable neglect. The court electronic filing system shows no opposition or reply at the time of the tentative ruling publication cutoff.

Code of Civil Procedure section 473 subdivision (b) provides in part:

“The 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.”

“The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed. (Citation.) The six-month period runs from entry of default, not entry of judgment.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) The motion was filed 12 days after entry of the judgment. The motion is therefore timely.

“[A] trial court is obligated to set aside a default, default judgment, or dismissal if the motion for mandatory relief (1) is filed within six months of the entry of judgment, (2) ‘is in proper form,’ (3) is accompanied by the attorney affidavit of fault, and (4) demonstrates that the default or dismissal was in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.’” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 443.) Given the answer was filed by Cooper, and counsel only substituted into the case after entry of the default, the court considers the self-represented party standard.

A discretionary standard applies to the motion given the lack of an attorney statement and dependence on the individual parties’ explanation. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1251-1252; see Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 727.) Public policy favors adjudication of claims on the merits. Nevertheless, where conduct by the party acting in pro per represents a deliberate, strategic decision, public policy vests the court with discretion to find no basis for relief. (Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 929-930; Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1251-1252.)

Teague represents a lack of notice of the continued hearings, and dependence on said notices for a determination of when to appear. The court cannot verify the veracity of the statement due to the lack of any notice of order from the court filed by Defendant. The court, however accepts the lack of notice caused by Teague’s failure to monitor the proceedings from other sources instead of waiting for mail notice.

The court therefore grants the motion and vacates the default judgment as to Teague. The July 13, 2022, filed answer to the third amended cross-complaint is therefore no longer stricken.

The court will concurrently conduct an OSC re: Sanctions, Dismissal, etc.

Plaintiff to give notice.