Judge: Thomas D. Long, Case: 22STCV15633, Date: 2023-10-10 Tentative Ruling

Case Number: 22STCV15633    Hearing Date: October 10, 2023    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On May 10, 2022, Plaintiff Skye Anesthesia filed this action against Defendant Law Offices of David Azizi and others.  On March 8, 2023, the Court entered default against Defendant.  On March 15, 2023, Defendant filed an answer, and on July 6, 2023, Plaintiff moved to strike the answer.

On August 23, 2023, Defendant filed a motion to set aside/vacate default.

The Court may relieve a party or counsel from a judgment resulting from mistake, inadvertence, surprise, or excusable neglect.  (Code Civ. Proc., § 473, subd. (b).)  The application for relief must be made within a reasonable time, not to exceed six months, after the judgment.  (Ibid.)  “Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted.  [Citations.]  In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’  [Citation.]”  (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.)

Defendant timely filed this motion less than six months after entry of default.  Defendant’s counsel explains that he knew that Mr. Azizi was communicating with Plaintiff’s counsel about dismissing Defendant.  (Ghermezian Decl. ¶ 2.)  When Plaintiff refused to dismiss Defendant, Defendant’s counsel understood that Defendant expected him to file an answer on its behalf, along with the answers for other defendants.  (Ghermezian Decl. ¶ 2.)  Plaintiff’s counsel did not provide timely notice that they were going to take Defendant’s default.  (Ghermezian Decl. ¶ 3.)

Plaintiff’s counsel had an ethical obligation to warn defense counsel that Plaintiff was about to seek default judgment.  (See Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135 (Lasalle).)  On June 23, 2022, Plaintiff’s counsel emailed Mr. Azizi and stated, “Please respond to the complaint or I will default you.”  (Schutzman Decl., Ex. A.)  Plaintiff did not seek Defendant’s default until over eight months later, on March 8, 2023.  This is not sufficient notice that Plaintiff was about to take Defendant’s default.

Plaintiff has not shown any prejudice if the default is set aside, “given the relatively short time between [Plaintiff] seeking the default and [Defendant] asking to be relieved from it.”  (Lasalle, supra, 36 Cal.App.5th at pp. 138-139.)  “‘When evaluating a motion to set aside a default judgment on equitable grounds, the “court must weigh the reasonableness of the conduct of the moving party in light of the extent of the prejudice to the responding party.”’ [Citation.]”  (Id. at p. 139.)  As in Lasalle, setting aside this default involves little wasted time.

Accordingly, the motion to set aside the March 8, 2023 entry of default is GRANTED.  Defendant is ordered to file a responsive pleading within five days.

On the Court’s own motion, the Hearing on Motion to Strike the Answer of Law Offices of David Azizi set for 02/29/2024 at 08:30 AM is advanced to this date and vacated.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

         Dated this 10th day of October 2023