Judge Theresa M. Traber, Case 22STCV05040 2023-02-14 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV05040, Date: 2023-02-14 Tentative Ruling

Case Number: 22STCV05040 Hearing Date: February 14, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: February 14, 2023 TRIAL DATE: NOT SET

CASE: Toorak Capital Partners, LLC v. Chris Jaeho Yang

CASE NO.: 22STCV05040

MOTION TO SET ASIDE DEFAULT JUDGMENT

MOVING PARTY: Defendant Chris Jaeho Yang

RESPONDING PARTY(S): Plaintiff Toorak Capital Partners, LLC

CASE HISTORY:

· 02/09/22: Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for breach of contract filed on February 9, 2022. Plaintiff alleges that Defendant is liable as guarantor for the outstanding debt on a mortgage following a foreclosure sale.

Defendant moves to set aside the default judgment entered against him under the mandatory relief provision of Code of Civil Procedure section 473(b).

TENTATIVE RULING:

Defendant’s Motion to Set Aside Default Judgment is CONTINUED to Friday, March 3, 2023 at 9:00 AM.

Defendant is directed to file and serve a supplemental declaration from Attorney Awa stating when the representation began, why the answer was not timely filed, and any other relevant facts necessary for ruling on this motion. This declaration is to be filed and served on or before February 21, 2023.

DISCUSSION:

Defendant moves to set aside the default judgment entered against him under the mandatory relief provision of Code of Civil Procedure section 473(b).

The mandatory provision of Code of Civil Procedure section 473(b) states:

“Notwithstanding any other requirements of this section, the court shall, 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, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.”

(Code Civ. Proc. § 473(b).) Default judgment was entered in this case on July 7, 2022. (Notice of Entry of Default.) This motion was filed on January 3, 2023, 5 months and 27 days after judgment was entered. Thus, the motion was timely filed.

The Declaration of Nnana U. Awa attached to the motion states that Attorney Awa was the attorney of record for Defendant. (Declaration of Nnana U. Awa ISO Mot. ¶ 1.) However, the Court has no record of Attorney Awa ever representing Defendant. Further, as Plaintiff states in opposition, the declaration does not state when the representation began or provide any information beyond a statement that Attorney Awa “attempted to file an answer on behalf of Chris Yang but later realized that the answer was not filed in sufficient time to prevent an entry of a default.” (Id. ¶ 2.) This is not sufficient to establish that Defendant’s default was due to the mistake, inadvertence, surprise, or neglect of Defendant’s counsel, because it does not explain why the answer was not filed in time to ward off default. Nonetheless, in light of the strong presumption in favor of litigation on the merits and the mandatory nature of relief under this provision when there is an adequate showing of fault, the Court will exercise its discretionary authority to permit Defendant to file a supplemental declaration setting forth sufficient facts to permit the Court to make this determination.

CONCLUSION:

Accordingly, Defendant’s Motion to Set Aside Default Judgment is CONTINUED to Friday, March 3, 2023 at 9:00 AM.

Defendant is directed to file and serve a supplemental declaration from Attorney Awa stating when the representation began, why the answer was not timely filed, and any other relevant facts necessary for this motion. This declaration is to be filed and served on or before February 21, 2023.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: February 14, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.