Judge: Theresa M. Traber, Case: 22STCV31101, Date: 2023-11-29 Tentative Ruling

Case Number: 22STCV31101    Hearing Date: November 29, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     November 29, 2023               TRIAL DATE: NOT SET

CASE:                         Barton, Klugman & Oetting, LLP

CASE NO.:                 22STCV31101           

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

MOVING PARTY:               Defendant Yaniv Yasmeh

RESPONDING PARTY(S): Plaintiff Barton, Klugman & Oetting, LLP

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for breach of contract that was filed on September 22, 2022. Plaintiff alleges that Defendants failed to make payments pursuant to a contract between Plaintiff and their predecessor in interest, Bruce Yasmeh.

Defendant Yaniv Yasmeh moves to set aside a default and default judgment taken against him.

TENTATIVE RULING:

Defendant Yasmeh’s Motion to Set Aside Default and Default Judgment is DENIED.

DISCUSSION:

Defendant Yaniv Yasmeh moves to set aside a default and default judgment taken against him.

Timing of Service

            Defendant’s motion was served by email on October 22, 2023 for a hearing on November 15, 2023. (Proof of Service.) Code of Civil Procedure section 1005(b) requires that any regularly noticed motion be served 16 court days in advance of the hearing. (Code Civ. Proc. § 1005(b).) That time is extended by an additional two court days if service is made electronically. (Code Civ. Proc. § 1010.6.) Thus, for a hearing on November 15, 2023, the deadline to serve a notice of motion by electronic service was Thursday, October 19, 2023. That said, the Court continued the matter on its own motion to November 29, 2023 due to congestion of the Court’s calendar. Thus, the issue of service of the motion is moot. Moreover, as Plaintiff was able to respond to the motion despite insufficient notice, it appears that the defect in service was not material. The Court will therefore consider the motion on its merits.

Analysis

Defendant Yaniv Yasmeh moves to set aside a default and default judgment taken against him based on a purported mistake by his counsel.

The mandatory relief 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).)

 Defendant, previously a self-represented litigant, failed to file an answer before a default was taken against him. Defendant purportedly retained the services of his current counsel on May 5, 2023, but the substitution of attorney was not filed until May 10, 2023. (See Substitution of Attorney.) Although the declaration of Defendant’s counsel states in conclusory fashion that the default judgment was obtained as the result of his mistake, Defendant’s motion is silent as to the underlying default. (See Declaration of Leslie S. McAfee ISO Mot. ¶ 2.) This is not surprising as Defendant’s papers state that he was self-represented at the time the default was taken. (Id. ¶ 2.) The mandatory relief provision of section 473(b) plainly states that relief is not available if “the default . . . was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc. § 473(b) [emphasis added].) Defendant has effectively conceded that this is precisely the case.

Defendant offers numerous arguments in reply that were not raised in the original motion. First, Defendant argues that the “attorney fault” that is at issue is a purported representation by Plaintiffs that they would not pursue a default while the parties took their dispute to a religious arbiter. A representation by the opposing party is not a basis for relief under the mandatory relief provision of section 473(b). Such relief is only available when an attorney’s misconduct prejudices his own client. Regardless of the nature of this dispute, Defendant is not the client of Plaintiffs or their counsel with respect to this action. Further, religious proceedings are irrelevant to this action, and it would likely be unconstitutional for this Court to consider them at all. (Cal. Const. Art. I § 4; see also U.S. Const. Amend. I.)

Second, Defendant argues that he was not properly served with the Summons and Complaint. This is an argument that the default and default judgment are void under section 473(d), or, alternatively, that the default and default judgment should be set aside under section 473.5. As neither provision was identified in Defendant’s Notice of Motion as a claimed basis for relief, these arguments are improper.

Defendant has not demonstrated that the default was taken against him through the mistake, inadvertence, surprise or neglect of his counsel. The Court therefore finds that the mandatory relief provision of section 473(b) does not authorize relief in these circumstances.

CONCLUSION:

            Accordingly, Defendant Yasmeh’s Motion to Set Aside Default and Default Judgment is DENIED.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: November 29, 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.