Judge Steven A. Ellis, Case Number: 21STCV26485, Date: 2025-01-07 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV26485, Date: 2025-01-07 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE. 4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020)
IMPORTANT: In light of the COVID-19 emergency, the Court encourages all parties to appear remotely. The capacity in the courtroom is extremely limited. The Court appreciates the cooperation of counsel and the litigants.
ALSO NOTE: If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar. THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 21STCV26485 Hearing Date: January 7, 2025 Dept: 29

Enlow v. Starline Tours of Hollywood
21STCV26485
Motion to Set Aside Default filed by GAW Capital Investments, LLC dba Ovation Hollywood and DJM Capital Partners, Inc.

Tentative

The hearing on the motion is continued for procedural reasons.

Background

On July 19, 2021, Cheryl D. Enlow (“Plaintiff”) filed a complaint against Starline Tours of Hollywood, Inc. (“Starline”) and Does 1 through 20 for negligence arising out of an incident on July 26, 2019, in which Plaintiff alleges that she was injured while attempting to board a tour bus or other tour vehicle.

On April 3, 2023, Starline filed an answer.

On February 2, 2024, Plaintiff amended the complaint to name Gaw Capital Investments, LLC dba Ovation Hollywood (“Gaw”) as Doe 1 and DJM Capital Partners, Inc. dba Ovation Hollywood (“DJM”) as Doe 2.

On June 28, 2024, Plaintiff amended the complaint to name CIM Group, L.P. as Doe 3 and CIM Group Acquisitions, LLC as Doe 4.

After their demurrer was overruled and their motion to strike was granted, CIM Group, L.P. and CIM Group Acquisitions, LLC (collectively, the “CIM Defendants”) filed an answer on October 2, 2024.

As it relates to the matter before the Court and set for hearing on January 7, 2025, the default of Gaw and DJM (“Defendants”) was entered on June 21, 2024.

On November 27, 2024, Defendants filed this motion to set aside the default.

No opposition has been filed.

Legal Standard

Code of Civil Procedure section 473, subdivision (b) provides for both discretionary and mandatory relief from dismissal.

As to discretionary relief, the statute states: “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 through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code of Civil Procedure § 473, subd. (b).) Where such an application for discretionary relief is made, the motion must be accompanied by a copy of the answer or pleading proposed to be filed; “otherwise the application shall not be granted.” (Ibid.) The application for relief must be made within a reasonable time, and in no case exceeding six months after the judgment. (Ibid.)

The statute also provides for mandatory relief from dismissal, default, or default judgment:

“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 … unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”

(Ibid.)

A request for discretionary relief under section 473, subdivision (b), must be made (subject to certain exceptions) “within a reasonable time, in no case exceeding six months.” (Ibid.) A request for mandatory relief must be made within six months. (Ibid.)

Discussion

Defendants seek discretionary relief from default under Code of Civil Procedure section 473, subdivision (b). According to Defendants, they failed to answer the complaint “was not sent to our risk manager” as “a result of inadvertence and miscommunication.” (Gomez Decl., ¶ 17.) “Specifically, there was confusion about which DJM Capital employee was tasked with providing the summons to the risk manager.” (Ibid.)

When a party seeks discretionary relief from default, however, a mandatory statutory requirement is that the party seeking relief must accompany the motion with “a copy of the answer or other pleading proposed to be filed.” (Code Civ. Proc., § 473, subd. (b).) Here, Defendants have not satisfied this mandatory requirement.

The hearing is continued for approximately 30 days. No less than 16 court days prior to the hearing, Defendants must file a copy of their proposed answer or other proposed pleading. If they do not do so, “the application shall not be granted.” (Ibid.)

Conclusion

The Court CONTINUES the hearing on this motion for approximately 30 days so that Defendants may satisfy the mandatory procedural requirements of Code of Civil Procedure section 473, subdivision (b).

The Court ORDERS Defendants to file and serve a copy of the answer of other pleading proposed to be filed at least 16 court days prior to the new hearing date.

Moving Party is to give notice.