Ruling
TD Bank, N.A. vs. Gurpreet Singh
Jul 10, 2024 |
21CECG01521
Re: TD Bank, N.A. v. Singh
Superior Court Case No. 21CECG01521
Hearing Date: July 10, 2024 (Dept. 503)
Motion: by plaintiff for Judgment on the Pleadings
Tentative Ruling:
To continue the motion to Thursday, August 15, 2024, at 3:30 p.m., in Department
503, in order to allow the parties to meet and confer in person, by telephone, or by video
conference, as required. If this resolves the issues, plaintiff’s counsel shall call the court to
take the motions off calendar. If it does not resolve the issues, plaintiff’s counsel shall file
a declaration, on or before Thursday, August 8, 2024, at 5:00 p.m., stating the efforts
made.
Explanation:
Plaintiff did not satisfy the requirement to meet and confer prior to filing the motion
for judgment on the pleadings. Code of Civil Procedure section 439 makes it very clear
that meet and confer must be conducted in person, by telephone, or by video
conference prior to filing the motion. While the parties may utilize written correspondence
to help supplement the meet and confer process, the moving party is not excused from
the requirement to do so in person, by telephone, or by video conference, unless it shows
that the defendant failed to respond to the meet and confer request or otherwise failed
to meet and confer in good faith. (Code Civ. Proc., § 439, subd. (a)(3)(B).) The evidence
did not show a bad faith refusal to meet and confer on defendant’s part that would
excuse plaintiff from complying with the statute.
The parties must engage in good faith meet and confer, in person, by telephone,
or by video conference, as set forth in the statute. The court’s normal practice in such
instances is to take the motion off calendar, subject to being re-calendared once the
parties have met and conferred. However, given the extreme congestion in the court’s
calendar currently, the court will instead continue the hearing to allow the parties to
meet and confer, and only if efforts are unsuccessful will it rule on the merits.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: jyh on 7/8/24 .
(Judge’s initials) (Date)
Ruling
UNIFUND V HAGSTROM
Jul 10, 2024 |
MCV-231357
MCV-231357, Unifund v. Hagstrom
Judgment Creditor, Unifund CCR, LLC’s, unopposed Application for Order of Sale of Dwelling
is GRANTED. Judgment Debtor, Steve E. Hagstrom, has failed to show cause why the property should
not be sold to satisfy the judgment. A homestead declaration has not been recorded by Judgment Debtor.
By failing to oppose the application and failing to respond to the Court’s order to show cause, Judgment
Debtor has failed to meet his burden of showing that the homestead exemption applies here. (CCP §
704.780.) There is no evidence of any other exemption being applicable here. The property shall be sold
in the manner provided in Article 6 (commencing with Section 701.510) of Chapter 3 of the Code of Civil
Procedure, as required by CCP § 704.780.
Judgment Creditor shall submit a written order consistent with this tentative ruling. The proposed
order currently lodged with the Court does not conform with the Court’s ruling. It does not reference the
correct hearing date. It refers to the Judgement Debtor as “Adam Seller” on the first page. Also, it states
that no minimum bid shall be required, but this does not comply with CCP § 701.620, which states
property shall not be sold without a minimum bid. Judgment Creditor shall submit a written order that
complies with all of the requirements of Article 6 of Chapter 3 and of Article 4 of Chapter 4.
4. 23CV00186, Jooblay, Inc. v. Steven D. Skolnik
The Court awards Defendant $5,545 in fees and costs. Defendant’s counsel shall prepare a written
order consistent with this tentative ruling in compliance with California Rules of Court, rule 3.1312.
I. Background
On August 29, 2023, Plaintiff filed this action for (inter alia) wrongful foreclosure and quiet title.
The subject properties are 1551 Laguna Road, Santa Rosa, and 9579 Ross Station Road, Sebastopol. On
September 26, 2023, Plaintiff recorded Notices of Pending Action (“lis pendens”) on both properties. The
notices were filed with the Court on April 16, 2024. On the same day, Pacific Private Money
(“Defendant”) moved to expunge the lis pendens on the Laguna Road property only (the “Motion”). The
Motion included a request for attorney’s fees, but did not specify an amount.
On May 28, 2024, Plaintiff filed a different lawsuit, Jooblay, Inc. v. Sanchez (24CV03100),
concerning the same two properties. The Sanchez complaint alleges causes of action that fundamentally
duplicate six of the causes of action in the instant case, though against slightly different sets of
defendants. The duplicated causes of action include two for quiet title, one related to the Ross Station
property and the other to the Laguna property. On June 13, Plaintiff filed a Request for Dismissal in the
instant case, dismissing the causes of action that had been duplicated in the Sanchez complaint, including
the two quiet title claims. In summary, Plaintiff moved several causes of action, including two for quiet
title, from the instant case into a different lawsuit. Thus, the instant case no longer has a quiet title
component.
Plaintiff withdrew the lis pendens on the Laguna Road property on June 3. Plaintiff recorded a
new lis pendens on the Laguna Road property, relating to the Sanchez matter, on or about June 6.
At the June 14 hearing, the Court denied the Motion as moot. Defendant argued that the motion is
not moot because it is entitled to attorney’s fees. The Court continued the matter and instructed
Defendant to submit an itemization of its fees and costs. Defendant did so on June 24. This matter comes
on calendar for consideration of Defendant’s requests for fees and costs.
II. Analysis
CCP § 761.010(b) requires that “[i]mmediately upon commencement of [a quiet title] action, the
plaintiff shall file a notice of the pendency of the action in the office of the county recorder of each county
in which any real property described in the complaint is located.”
The complaints in both the instant case and Sanchez allege causes of action for quiet title. In the
instant case, Plaintiff recorded a lis pendens just under a month after filing the complaint. In the Sanchez
case, Plaintiff recorded it slightly over a week after filing the complaint. Both timeframes somewhat
stretch the definition of “immediately,” but the point is that Plaintiff was required to record the lis
pendens in both cases. Plaintiff withdrew the lis pendens in the instant case ten days before dismissing
the two quiet-title cause of action that had required it. In other words, as relevant here, Plaintiff has filed
a lawsuit containing quiet-title allegations, recorded a lis pendens as required by statute, moved the quiet-
title allegations to a different lawsuit, withdrawn the lis pendens in the first lawsuit because it was no
longer required by statute, and recorded it in the second one because it was required by statute.
The party prevailing on any motion to expunge a lis pendens is entitled to “the reasonable
attorney’s fees and costs of making or opposing the motion.” (CCP § 405.38.) If the Court had granted
Defendant’s motion and ordered Plaintiff to withdraw the lis pendens, there would be no question that
Defendant was the prevailing party and entitled to attorney’s fees. But the Court did not do that; the
Court denied Defendant’s Motion as moot because the lis pendens addressed by the Motion had already
been withdrawn. The question, then, is whether Defendant is still the prevailing party.
Plaintiff argues that Defendant is not, noting that “California law defines the ‘prevailing party’ to
include ‘the party with a net recovery’ or ‘a defendant in whose favor a dismissal is entered.’” (Oppo at
p. 6.) Plaintiff cites for this proposition to CCP § 1032(a)(4), which does begin with the passage Plaintiff
quoted, but goes on to add that “[i]f any party recovers other than monetary relief and in situations other
than as specified, the ‘prevailing party’ shall be as determined by the court, and under those
circumstances, the court, in its discretion, may allow costs or not . . . .” Thus, CCP § 1032(a)(4), as
applied to the situation presented here, simply says that the court has the discretion to determine which
party is “prevailing,” but provides no guidance on how to make that determination.
Significant guidance is provided by Castro v. Superior Court (2004) 116 Cal.App.4th 1010, which
addresses this exact issue. Castro rejects any inflexible rule that the moving party either is or is not
entitled to attorney’s fees when a lis pendens is withdrawn before the court has an opportunity to rule on a
motion to expunge it. Instead, Castro calls for a “practical approach,” under which “the trial court has the
discretion to award attorney fees based on a determination of which party would have prevailed on the
motion, and whether the lis pendens claimant acted with substantial justification in withdrawing the lis
pendens, or whether, in light of all of the circumstances, the imposition of fees would otherwise be
unjust.” (Id. at pp. 1024-1025.)
A. Defendant would have prevailed on the Motion.
In the Motion, Defendant sets forth a variety of reasons why it should prevail. The reasons fall
into two categories: procedural defects, and reasons Plaintiff cannot establish a likelihood of prevailing on
a real property claim. (CCP § 405.32 [lis pendens to be expunged if claimant does not establish probable
validity of claim].)
In the first category, Defendant notes that the recording, service, and filing of the lis pendens
failed to comply with statutory requirements. First, Defendant points out that the lis pendens bears the
wrong caption in that it lists only Defendant, Pacific Private Money, as a defendant in the pending action,
whereas the complaint in the instant case lists a number of other defendants. The Court does not find this
point significant standing alone, in light of the fact that the actual complaint, with its full caption, was
attached to the Notice of Pending Action. Defendant’s second point in this category is that the lis pendens
was not served on Defendant, and that it should have been because Defendant is “affected by the real
property claim.” (CCP § 405.22.) (Defendant also argues that the lis pendens was not filed with the
Court, but in fact it was, on April 16, 2022, the same day the Motion was filed.)
In the second category, Defendant makes a series of arguments as to the prospective failure of
every cause of action in the complaint. In light of Plaintiff’s contention that its only reason for filing the
lis pendens was to comply with a statutory requirement related to quiet-title actions, the most relevant
cause of action is the eighth, the one to quiet title on the Laguna property. That cause of action states that
the defendants against whom it is alleged have no interest in the Laguna Road property. Defendant argues
that this claim will fail for two reasons: first, because it rests on the allegation that the loan upon which
the defendants foreclosed was usurious, which is not a valid argument because Defendant is a licensed
broker and therefore exempt from the usury laws (Fin. Code § 22002); and second, because Plaintiff
cannot contest the foreclosure because he failed to tender the payment due (Daniels v. Select Portfolio
Servicing (2016) 246 Cal.App.4th 1150, 1184-1185).
Plaintiff did not address any of these arguments in its opposition to the Motion; it rested on the
point that the motion was moot because Plaintiff had withdrawn the lis pendens. Nor does Plaintiff
address them in its opposition to the instant fee motion, with the exception of Plaintiff’s explanation that
the quiet-title causes of action in the complaint are not alleged against Defendant. Plaintiff’s point,
presumably, is that Defendant is not “affected by the real property claim” and therefore service on
Defendant was not required. (CCP § 405.22.) That argument would carry a great deal more weight if
Defendant Pacific Private Money were not the only party mentioned in the caption of the lis pendens
document. The fact that Plaintiff named Pacific Private Money, and no other defendant, in the caption of
the Notice of Pending Action is at odds with the notion that Plaintiff did not consider Pacific Private
Money to be sufficiently “affected by the real property claim” to require the lis pendens document to be
served on them.
“[T]he court shall order that the [lis pendens] notice be expunged if the court finds that the
claimant has not established by a preponderance of the evidence the probable validity of the real property
claim.” (CCP § 405.32.) In light of Plaintiff’s failure to address Defendant’s contentions about why the
claim will fail, the Court finds that Plaintiff has not established validity. Therefore, the court finds that
Defendant would have prevailed on the Motion if it had gone forward.
B. Substantial justification
Plaintiff asserts that it,
“acted in substantial justification in withdrawing the Laguna Road Property lis pendens
when Plaintiff elected, as is its right, to voluntarily dismiss its causes of action for quiet
title. Upon deciding to dismiss the quiet title causes of action – the only cause of action
requiring the recording of a lis pendens, Plaintiff adopted the only practical approach to the
dismissal by withdrawing the lis pendens no longer required because the quiet title cause
of action are no longer part of this case. Plaintiff acted with substantial justification in
withdrawing the lis pendens.”
(Oppo at p. 6.) That is, Plaintiff argues that withdrawing the lis pendens that had been recorded in the
instant case was justified and necessary and done in good faith because there ceased to be any need for it
once the quiet-title causes of action were dismissed.
The Court acknowledges that Plaintiff had the legal right remove several causes of action from the
instant case and re-allege them in a new case. The Court also acknowledges that when Plaintiff did that,
withdrawing the lis pendens he had filed in the instant case was the right thing to do. However, Plaintiff
never addresses the question of why he filed the new case. It is not at all obvious why the same thing
could not have been accomplished more straightforwardly, without the need for a new $435 first-paper
filing fee and without exposing Plaintiff to an additional case’s worth of discovery demands, by moving
to file a First Amended Complaint in the case at bar. Plaintiff cannot have reasonably been concerned
that the Court would deny such a motion at this early stage of the proceedings.
What is obvious is that by taking the action it did, Plaintiff created a basis to oppose the Motion,
which had been filed six weeks before Plaintiff filed Sanchez and which was set for hearing two weeks
later, as moot. Whether or not that was Plaintiff’s motivation for filing the new case and dismissing the
corresponding causes of action in the instant one, the Court finds that doing so does not rise to substantial
justification for withdrawing the lis pendens.
Accordingly, Defendant is the “prevailing party” under the Castro analysis described above.
C. Imposition of the fees is not unjust
The Court sees no reason to conclude that imposition of attorney’s fees would be unjust, and will
therefore impose them.
III. Computation of the fee award
The standard for calculating attorney fee awards under California law “ordinarily begins with the
‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate . . . .
The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to
fix the fee at the fair market value for the legal services provided. [Citation.] Such an approach anchors
the trial court’s analysis to an objective determination of the value of the attorney's services, ensuring that
the amount awarded is not arbitrary.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)
In calculating the lodestar, “The reasonable hourly rate is that prevailing in the community for
similar work.” (PLCM Group, supra, 22 Cal.4th at p. 1095.) “The general rule is ‘[t]he relevant
“community” is that where the court is located,’ unless the party claiming fees demonstrates that hiring
local counsel was impracticable or local counsel was not available.” (Marshall v. Webster (2020) 54
Cal.App.5th 275, 285-286; see also Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226
Cal.App.4th 26,72 [“fee awards generally should be based on reasonable local hourly rates”]; Horsford v.
Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 398-399 [different rule
where plaintiff demonstrated inability to hire local counsel].)
“[T]he trial court has broad authority to determine the amount of a reasonable fee.” (PLCM
Group, supra, 22 Cal.4th at p. 1095.) “The determination of what constitutes reasonable attorney fees is
committed to the discretion of the trial court. [Citation.] The experienced trial judge is the best judge of
the value of professional services rendered in his or her court.” (Rey v. Madera Unified School Dist.
(2012) 203 Cal.App.4th 1223, 1240.)
A. Defendant’s request
In the Supplemental Declaration of Brianna Milligan accompanying the request for attorney’s
fees, Defendant requests fees as follows, as well as $60 for the filing fee for the Motion:
Jacoby Perez
Researching and evaluating grounds for Motion: 5 hours
Preparing and finalizing Motion: 5 hours
Reviewing and revising reply: 1.2 hours
Total: 11.2 hours @ $525/hour
Brianna Milligan
Reviewing opposition and preparing reply and declaration: 4.2 hours
Reviewing billing charges and preparing declaration re. fees: 1.5 hours
Preparing supplemental brief re. fees: 2 hours
Anticipated time at hearing: 1 hour
Total: 8.7 hours @ $455/hour
B. Defendant’s arithmetic is in error
Defendant requests a total of $17,773.35 in fees and costs. That figure is the sum of $13,755.00
for Mr. Perez’s time, $3,503.35 for 7.7 hours of Ms. Milligan’s time attributable to preparing the Reply
and the fee request, an additional $455 for Ms. Milligan’s anticipated time at the hearing on the fee
request, and the $60 filing fee. Those figures do add up to $17,773.35.
However, there are two problems with the calculation. The first is very small: 7.7 hours at
$455/hour is $3,503.50, not $3,503.35. Thus, Defendant presumably intends to request a total of
$3,958.50 for 8.7 hours of Ms. Milligan’s time, not $3,958.35.
The second is considerably larger. Mr. Perez, according to Ms. Milligan’s declaration, has “spent
5 hours researching and evaluating the grounds for the Motion to Expunge the Lis Pendens, and an
additional 5 hours preparing and finalizing the Motion to Expunge the Lis Pendens. Mr. Perez also
reviewed and revised Defendant’s Reply Brief to Plaintiff’s Opposition to the Motion to Expunge the Lis
Pendens and spent 1.2 hours doing so.” (Milligan Dec., ¶ 6.) That is a total of 11.2 hours. Mr. Perez’s
billing rate is $525/hour. (Milligan Dec., ¶ 7.) 11.2 hours at $525/hour is $5,880. It is not $13,755, the
amount claimed for Mr. Perez’s time. $13,775 divided by $525 is 26.2. The claimed amount, therefore,
appears to be based on an additional 15 hours of Mr. Perez’s time that are not accounted for in the
declaration.
The Court will interpret Defendant’s request as being for 11.2 hours of Mr. Perez’s time at
$525/hour ($5,880), 8.7 hours of Ms. Milligan’s time at $455/hour ($3,958.50), and $60 in filing fees, for
a total of $9,898.50.
D. Time
1. Motion to expunge
Defendant claims a total of 10 hours of Mr. Perez’s time in connection with the researching and
drafting the Motion. The memorandum of points and authority is detailed and fact-intensive, and includes
extensive citation to authority. Its complexity is tied to the complexity of the complaint in this matter: it
argues, inter alia, that Plaintiff is unlikely to succeed on eight separate causes of action. However, the
Court notes that in his declaration accompanying the Reply, Mr. Perez declares that he spent only 6.5
hours on the motion: “2 hours doing preliminary research to form the basis for this expungement motion,”
and “4.5 hours preparing the motion to expunge.” Mr. Perez was clearly referring to the motion itself, not
to the reply memorandum, as he claims an additional 4.3 hours for that.
Ms. Milligan’s declaration does not explain why Mr. Perez now appears to have spent 10 hours
researching and drafting the motion. The Court will take Mr. Perez at his word, and award attorney’s fees
for 6.5 hours for preparing the Motion.
2. Reply
Defendant claims a total of 5.4 hours in connection with drafting the Reply: 4.2 hours of Ms.
Milligan’s time and 1.2 of Mr. Perez’s. The Reply was a well-justified response to Plaintiff’s contention
that the Motion was moot. The Court finds the 4.2 hours claimed by Ms. Milligan for preparing the reply
to be reasonable. However, the Court will not award the 1.2 hours for Mr. Perez’s time on the reply
because 4.2 hours should have been sufficient to prepare the memorandum and no review should have
been necessary.
As noted above, Mr. Perez states in his declaration accompanying the Reply that he “spent 4.3
hours reviewing and researching Plaintiff’s Opposition and in preparing Defendant’s Reply Brief and in
making this Declaration.” The Court finds the 4.3 hour figure unreasonable. The Opposition
fundamentally says no more than that the motion is moot because the lis pendens was withdrawn; that
takes no significant time to review. The declaration is one page long (exclusive of the jurat), much of
which consists of the list of defendants; it also cannot have taken significant time. 4.3 hours is no less
reasonable than the 4.2 hours claimed by Ms. Milligan for preparing the reply, but if Ms. Milligan spent
4.2 hours preparing it, it is unreasonable to award Mr. Perez an additional 4.3 hours for doing the same
thing.
Accordingly, the Court will award attorney’s fees for 4.2 hours of Ms. Milligan’s time in
connection with the reply.
3. Fee request
Defendant claims a total of 3.5 hours of Ms. Milligan’s time in connection with the fee request,
consisting of 1.5 hours for reviewing billing charges and preparing the declaration, and 2 hours for
drafting the motion. The Court finds the 1.5 hour figure excessive. The Court again notes that Mr. Perez
described the time he spent on the original motion in his declaration accompanying the reply; no further
review was necessary to determine that figure. Ms. Milligan cannot reasonably have spent an hour and a
half determining her own time in connection with the reply, and her time spent preparing the fee request
cannot even have been entered into anything she could review while she was engaged in that exact task.
The Court will award 2.2 hours of attorney’s fees in connection with the fee request, consisting of
two hours to draft the memorandum and .2 hours to review billing records.
4. Anticipated time for hearing
The Court will not award attorney’s fees for appearance at the hearing set for July 10 at this time.
If the tentative ruling is contested and the hearing takes place, the Court will be amenable to a request to
increase the fee award to cover the time spent by Defendant’s counsel.
5. Total time
Thus, the Court will award attorney’s fees for 6.5 hours of Mr. Perez’s time and 6.4 hours of Ms.
Milligan’s time.
E. Hourly rates
As noted above, “The reasonable hourly rate is that prevailing in the community for similar work.”
(PLCM Group, supra, 22 Cal.4th at p. 1095.) As noted above, the relevant “community” is the “forum
district,” here Sonoma county. (Nishiki, supra, 25 Cal.App.5th at p. 898.) Fees are limited to local
hourly rates unless the party seeking fees has made a good-faith but unsuccessful effort to find local
counsel. (Horsford, sura, 132 Cal.App.4th at pp. 398-399.)
Defendant’s counsel is located in Irvine. Defendant has not suggested that it has attempted to hire
local counsel instead. Therefore, the Court will adjust the hourly rates requested by counsel to reflect
Sonoma County rates. Defendant has also not provided any information about Mr. Perez’s and Ms.
Milligan’s level of skill and experience or their positions within the firm, but the Court takes judicial
notice that the State Bar website indicates that Mr. Perez has seven years’ practice experience and Ms.
Milligan has three. On that basis, the Court will set Mr. Perez’s rate, based on the reasonable rates
generally awarded to counsel of similar skill and experience in Sonoma County, to $450/hour, and Ms.
Milligan’s to $400/hour.
IV. Conclusion
The Court awards Defendant $5,545 in fees and costs, consisting of $2,925 for 6.5 hours of Mr.
Perez’s time at $450/hour, $2,560 for 6.4 hours of Ms. Milligan’s time at $400/hour, and the $60 filing
fee.
Ruling
SURENDRA BHAVNANI VS GREENLEAF DIAMONDS, LLC
Jul 11, 2024 |
23STCV07247
Case Number:
23STCV07247
Hearing Date:
July 11, 2024
Dept:
40
Superior Court of California
County of Los Angeles
Department 40
SURENDRA BHAVNANI DBA LAXMI IMPEX,
Plaintiff,
v.
GREENLEAF DIAMONDS, LLC, ANDRE SENGUL DBA GREENLEAF DIAMONDS, and DOES 1 through 20,
Defendants.
Case No.: 23STCV07247
Hearing Date: July 11, 2024
Trial Date: N/A
[TENTATIVE] RULING RE:
Defendant Andre Sengul dba Greenleaf Diamonds, LLCs Motion to Set Aside Default and Default Judgment
On May 16, 2023, Plaintiff SURENDRA BHAVNANI DBA LAXMI IMPEX (Plaintiff) filed the operative First Amended Complaint (FAC) against Defendants GREENLEAF DIAMONDS, LLC (GDL)
, ANDRE SENGUL DBA GREELEAF DIAMONDS (Sengul), and DOES 1 through 20 (collectively, Defendants). The FAC asserts the following causes of action against all Defendants:
1. Breach of Contract
2. Book Account
3. Goods Sold and Delivered
On June 28, 2023, default was entered against Defendant Sengul. Subsequently, default judgment was entered against Defendant Sengul in the amount of $101,364.86 on October 20, 2023.
Defendant Sengul now brings a Motion to Set Aside/Vacate Default and Default Judgment, which Plaintiff has not opposed.
A proof of service is attached to the motion showing service on Plaintiffs counsel at the address on the Judgment entered 10/20/23.
After review, the Court GRANTS the Motion because Defendant Sengul has shown he did not have actual notice of the action in time to defend on the merits.
Background Allegations
This action involves seven written contractual agreements between Plaintiff and Defendant Sengul for the sale of certain diamonds to Defendants in the amounts of $394.00, $30,294.00, $5,680.00, $17,769.00, $14,650.00, $3,300.00, and $285.00. (Compl., ¶9, Ex. 1.) Each agreement was to be paid in full within 120 days from the date of each memorandum. (
Id.
) Defendant Sengul failed to make any payments on the seven agreements resulting in a balance owed of $72,372.00. (
Id.
at ¶10.) Plaintiff made a demand for payment on the balance due and Defendant Sengul has refused to pay it. (
Id.
at ¶11.)
Motion to Set Aside/Vacate Default and Default Judgment
Legal Standard
:
When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i)¿two years after entry of a default judgment against him or her; or (ii)¿180 days after service on him or her of a written notice that the default or default judgment has been entered. (Code Civ. Proc., § 473.5(a).)¿¿
¿
A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the partys lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. (Code Civ. Proc., § 473.5(b).)
¿
Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action. (Code Civ. Proc., § 473.5(c).)
Here, Defendant Sengul contends he has been living in Maui, Hawaii for the past ten years and working at his business Greenleaf Diamonds in Maui at the time the purported service of process was rendered. (Sengul Decl., ¶¶2-3, 7, Exs. 1-2.) Defendant Sengul further contends that the 4220 Mesa Drive, La Canada, Flintridge, CA property where the purported service of process was effectuated is his investment Airbnb property that was being rented out by third-party guests during the time service was rendered. (
Id.
at ¶¶4-5, Exs. 3-4.) Moreover, Defendant Sengul asserts he became aware of this pending case in early March of this year, when he received a notice letter from his California bank that a deposition subpoena for his bank records had been issued by Plaintiffs counsel Timothy Krantz. (
Id.
at ¶¶6, 13.) Defendant Sengul has provided photographic evidence that he was not physically present in California when the alleged personal service was effectuated. Defendant Sengul has also produced evidence that the property where service was effectuated was occupied by Airbnb guests at the time when service was rendered.
Additionally, Defendant Sengul has submitted a proposed Answer with the instant motion. Lastly, Plaintiff has not opposed the present motion as to contest the arguments and evidence raised therein.
Therefore, Defendant Sengul presents sufficient grounds for discretionary relief under Code of Civil Procedure Section 473.5.
Conclusion
Based on the foregoing, Defendant Andre Sengul dba Greenleaf Diamonds, LLCs Motion to Set Aside/Vacate Default and Default Judgment is GRANTED. Defendant Sengul is ordered to file his Answer within 20 days of this order.