Judge: Theresa M. Traber, Case: 22STCV05040, Date: 2023-03-03 Tentative Ruling

Case Number: 22STCV05040    Hearing Date: March 3, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 3, 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

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 GRANTED.

            Defendant is to file and serve his answer within five court days of this order.

            Plaintiff’s request for fees and costs is DENIED.

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 stated 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 stated in opposition, the declaration did 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.) The Court, in recognition 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, exercised its discretionary authority to permit Defendant to file a supplemental declaration setting forth sufficient facts to permit the Court to evaluate the merits of this motion. That declaration was filed on February 22, 2023, and the Court now turns to the supplemental declaration to address the merits of the request.

            The supplemental declaration states that Attorney Awa’s firm, Law Angeles, APC, was retained by Defendant on May 12, 2022, 56 days before default judgment was entered. (Supplemental Declaration of Nnana U. Awa ISO Mot. ¶ 2.) The declaration includes a copy of the retainer agreement. (Id. Exh. 1.) Attorney Awa states that, due to a miscommunication with his office, he mistakenly did not know that Defendant had retained his firm for legal representation until June 23, 2022. (Id. ¶¶ 3-4.) By the time Attorney Awa learned of his mistake and was able to file an answer, default had already been entered. (Id. ¶¶ 4-5.) The Court finds that the supplemental declaration has set forth sufficient facts to demonstrate that Defendant’s failure to file an answer was the result of mistake by Defendant’s former legal counsel. Accordingly, the mandatory relief provision of section 473(b) requires that the Court set aside the default and default judgment and permit Defendant to file his answer.

Compensatory Attorney’s Fees and Costs

            Plaintiff requests $3,791.81 in compensatory fees and costs in connection with the default, default judgment, and this motion.

            Code of Civil Procedure section 473(b) requires that, whenever relief is granted based on an attorney’s affidavit of fault, the Court shall direct the attorney to pay reasonable compensatory legal fees and costs to the opposing counsel or parties. (Code Civ. Proc. § 473(b).) As the Court has granted relief based on Attorney Awa’s affidavit of fault, Plaintiff would be entitled to reimbursement of reasonable fees and costs from Attorney Awa. However, Attorney Awa is no longer Defendant’s counsel and is no longer before the Court in this case. Further, Plaintiff failed to give notice to Attorney Awa of its request for attorney’s fees, as the opposition papers were served only on current counsel. Thus, even if the Court retained jurisdiction to order Attorney Awa to pay fees and costs, it would be a violation of due process to do so on these papers.

CONCLUSION:

            Accordingly, Defendant’s Motion to Set Aside Default Judgment is GRANTED.

            Defendant is to file and serve his answer within five court days of this order.

            Plaintiff’s request for fees and costs is DENIED.

IT IS SO ORDERED.

Dated: March 3, 2023                         ___________________________________

                                                                                    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.