This case was last updated from Los Angeles County Superior Courts on 10/18/2020 at 08:39:12 (UTC).

ATKINSON-BAKER, INC. VS PAUL N. TAUGER

Case Summary

On 07/05/2018 ATKINSON-BAKER, INC filed a Contract - Other Contract lawsuit against PAUL N TAUGER. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******9070

  • Filing Date:

    07/05/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JON R. TAKASUGI

 

Party Details

Plaintiff and Cross Defendant

ATKINSON-BAKER INC.

Defendant and Cross Plaintiff

TAUGER PAUL N.

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorney

BATES JAMES WILLIAM

Defendant and Cross Plaintiff Attorney

TAUGER PAUL NATHAN

 

Court Documents

Notice of Change of Address or Other Contact Information - Notice of Change of Address or Other Contact Information

7/22/2020: Notice of Change of Address or Other Contact Information - Notice of Change of Address or Other Contact Information

Minute Order - Minute Order (Hearing on Motion to Vacate Pursuant to 473(b))

2/18/2020: Minute Order - Minute Order (Hearing on Motion to Vacate Pursuant to 473(b))

Motion to Vacate (name extension) - Motion to Vacate Judgment

12/19/2019: Motion to Vacate (name extension) - Motion to Vacate Judgment

Opposition (name extension) - Opposition To Ex Parte Application To Shorten Time To Hear Motion To Vacate Judgment

12/20/2019: Opposition (name extension) - Opposition To Ex Parte Application To Shorten Time To Hear Motion To Vacate Judgment

Supplemental Declaration (name extension) - Supplemental Declaration of Paul N. Tauger

12/23/2019: Supplemental Declaration (name extension) - Supplemental Declaration of Paul N. Tauger

Notice (name extension) - Notice Re Continuance Of Non-Jury Trial

12/31/2019: Notice (name extension) - Notice Re Continuance Of Non-Jury Trial

Notice (name extension) - Notice Of Continuance Of Hearing On Motion For Summary Judgment

8/29/2019: Notice (name extension) - Notice Of Continuance Of Hearing On Motion For Summary Judgment

Separate Statement - Separate Statement

6/18/2019: Separate Statement - Separate Statement

Answer - Answer

6/18/2019: Answer - Answer

Motion for Summary Judgment - Motion for Summary Judgment

6/18/2019: Motion for Summary Judgment - Motion for Summary Judgment

Notice of Change of Address or Other Contact Information - Notice of Change of Address or Other Contact Information

4/19/2019: Notice of Change of Address or Other Contact Information - Notice of Change of Address or Other Contact Information

Cross-Complaint

8/30/2018: Cross-Complaint

Notice of Rejection - Fax Filing

8/13/2018: Notice of Rejection - Fax Filing

Summons - on Complaint

7/5/2018: Summons - on Complaint

Civil Case Cover Sheet

7/5/2018: Civil Case Cover Sheet

Notice of Case Assignment - Limited Civil Case

7/5/2018: Notice of Case Assignment - Limited Civil Case

24 More Documents Available

 

Docket Entries

  • 04/22/2021
  • Hearing04/22/2021 at 09:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal (Settlement)

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  • 08/12/2020
  • DocketOrder to Show Cause Re: Dismissal (Settlement) scheduled for 04/22/2021 at 09:30 AM in Spring Street Courthouse at Department 25

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  • 08/12/2020
  • DocketOrder to Show Cause re: Dismissal (Settlement); Filed by: Clerk

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  • 08/12/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 07/08/2021 at 10:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 08/12/2020

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  • 08/12/2020
  • DocketNon-Jury Trial scheduled for 08/18/2020 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 08/12/2020

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  • 08/05/2020
  • DocketUpdated -- Notice of Settlement: Status Date changed from 08/05/2020 to 08/05/2020; As To Parties: removed

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  • 07/22/2020
  • DocketNotice of Change of Address or Other Contact Information; Filed by: Paul N. Tauger (Cross-Complainant)

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  • 07/22/2020
  • DocketAddress for Paul N. Tauger (Defendant) updated

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  • 03/18/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 03/18/2020
  • DocketOn the Court's own motion, Non-Jury Trial scheduled for 04/14/2020 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Advanced and Continued - by Court was rescheduled to 08/18/2020 08:30 AM

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31 More Docket Entries
  • 08/14/2018
  • DocketNotice of Rejection - Fax Filing; Filed by: Clerk

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  • 08/13/2018
  • DocketNotice of Rejection - Fax Filing; Filed by: Clerk

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  • 08/02/2018
  • DocketProof of Personal Service; Filed by: Atkinson-Baker, Inc. (Plaintiff); As to: Paul N. Tauger (Defendant); Service Date: 07/11/18; Service Cost: 65.00; Service Cost Waived: No

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  • 07/05/2018
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 07/05/2018
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 07/05/2018
  • DocketCivil Case Cover Sheet; Filed by: Atkinson-Baker, Inc. (Plaintiff)

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  • 07/05/2018
  • DocketComplaint; Filed by: Atkinson-Baker, Inc. (Plaintiff); As to: Paul N. Tauger (Defendant)

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  • 07/05/2018
  • DocketCase assigned to Hon. Jon R. Takasugi in Department 94 Stanley Mosk Courthouse

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  • 07/05/2018
  • DocketNon-Jury Trial scheduled for 01/02/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 07/05/2018
  • DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 07/08/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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Tentative Rulings

Case Number: 18STLC09070    Hearing Date: February 19, 2020    Dept: 25

MOTION TO SET ASIDE/VACATE ORDER

(CCP § 473(b))

TENTATIVE RULING:

Defendant/Cross-Complainant Paul N. Tauger’s Motion is GRANTED.

 

OPPOSITION: Filed on February 4, 2020 [ ] Late [ ] None

REPLY: None filed as of February 11, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background

On July 5, 2018, Plaintiff Atkinson-Baker, Inc. (“Plaintiff”) filed an action for breach of oral contract, common count/open book account, and common count/services performed against Defendant Paul N. Tauger (“Defendant”). On August 30, 2018, Defendant filed an Answer and a Cross-Complaint against Plaintiff for fraud.

On June 18, 2019, Plaintiff filed a Motion for Summary Judgment or, Alternatively, Summary Adjudication of Issues on Complaint and Cross-Complaint (“MSJ”). On October 1, 2019, the Court granted Plaintiff’s MSJ as to the Complaint, but declined to do so as to the Cross-Complaint.

On December 19, 2019, Defendant filed the instant Motion to Vacate Judgment (the “Motion”) seeking to vacate the Court’s order granting summary judgment as to the Complaint. On February 4, 2020, Plaintiff filed an Opposition. To date, Defendant has not filed a reply.

  1. Legal Standard & Discussion

  1. Notice

As an initial matter, the Court notes that Defendant did not file a proof of service for the instant Notice of Motion and Motion.

Code of Civil Procedure section 1005 requires that all moving and supporting papers for a motion be served and filed at least 16 court days before the hearing on that motion. (Code Civ. Proc., § 1005, subd. (b).) “The moving and supporting documents served shall be a copy of the papers filed or to be filed with the court.” (Id.) (Italics added.) However, “[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.]” (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7.) Because Plaintiff filed an Opposition to the Motion, it has waived any challenges as to notice.

  1. CCP 473(b)

  1. Discretionary Relief

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) Under the discretionary provision, an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“Mistake is not a ground for relief…when ‘the court finds that the “mistake” is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law....’ [Citation.] (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229.) “While not every mistake of an attorney constitutes excusable neglect…calendar errors by an attorney or member of his staff are, under appropriate circumstances, excusable.” (Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 980.) Relief is appropriate where an otherwise active party commits an isolated mistake, such as a calendaring error. (Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1134-35.)

The Court notes that although Defendant requests that the Court set aside the “judgment” entered against him, it is clear from his moving papers that he is actually referring to the October 1, 2019 Order granting Plaintiff’s Motion for Summary Judgment as to the Complaint. Plaintiff opposes this Motion on the basis that it is premature as no “judgment” has been entered yet. (Oppo., p. 2:1-9.) However, the Court has discretion to set aside an order under the discretionary provision of Code of Civil Procedure section 473, subdivision (b).

Defendant’s Motion is timely. Defendant states he is the sole employee in the legal department for the entity which is responsible for the unpaid bills at issue and that employees outside of the legal department assist him with calendaring matters. (Mot., Tauger Decl., ¶ 5.) He also states that he believed his employer would resolve the unpaid bills at issue. (Id. at ¶ 6.) He further states that the filing deadlines and hearing date for the MSJ were not calendared because of “apparent uncertainty regarding whether litigation would continue.” (Id.) Defendant relied on his support staff to calendar the matter should it need to be calendared, which would ultimately be determined by his employer. (Mot., p. 5:20-23.) Because the MSJ deadlines and hearing dates were not calendared by his support staff, Defendant failed to file an opposition. (Mot., Tauger Decl., ¶ 6.)

Based on the foregoing and the fact that Defendant has been an active participant in the matter (i.e., he has filed an Answer and a Cross-Complaint), the Court exercises its discretion and finds that Defendant is entitled to relief under the discretionary provision of Section 473, subdivision (b).

  1. Mandatory Relief

The mandatory provision states in pertinent part:

“[T]he 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 subd. (b).) (Italics added.)

Defendant also argues that his unique circumstances justify the application of the mandatory relief provisions of the statute. (Mot., p. 6:12-15.) However, relief under Section 473, subdivision (b) does not apply to summary judgments “because a summary judgment is neither a ‘default,’ nor a ‘default judgment,’ nor a ‘dismissal’ within the meaning of section 473(b).” (English v. IKON Business Solutions, Inc. (2001) Cal.App.4th 130, 138.) This is true regardless of whether summary judgment was the result of a party’s counsel’s mistake or neglect. (Ibid.)

Thus, Defendant is not entitled to relief under the mandatory provision.

  1. Conclusion & Order

For the foregoing reasons, Defendant/Cross-Complainant Paul N. Tauger’s Motion is GRANTED.

Moving party is ordered to give notice.

Case Number: 18STLC09070    Hearing Date: February 18, 2020    Dept: 25

MOTION TO SET ASIDE/VACATE ORDER

(CCP § 473(b))

TENTATIVE RULING:

Defendant/Cross-Complainant Paul N. Tauger’s Motion is GRANTED.

 

OPPOSITION: Filed on February 4, 2020 [ ] Late [ ] None

REPLY: None filed as of February 11, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background

On July 5, 2018, Plaintiff Atkinson-Baker, Inc. (“Plaintiff”) filed an action for breach of oral contract, common count/open book account, and common count/services performed against Defendant Paul N. Tauger (“Defendant”). On August 30, 2018, Defendant filed an Answer and a Cross-Complaint against Plaintiff for fraud.

On June 18, 2019, Plaintiff filed a Motion for Summary Judgment or, Alternatively, Summary Adjudication of Issues on Complaint and Cross-Complaint (“MSJ”). On October 1, 2019, the Court granted Plaintiff’s MSJ as to the Complaint, but declined to do so as to the Cross-Complaint.

On December 19, 2019, Defendant filed the instant Motion to Vacate Judgment (the “Motion”) seeking to vacate the Court’s order granting summary judgment as to the Complaint. On February 4, 2020, Plaintiff filed an Opposition. To date, Defendant has not filed a reply.

  1. Legal Standard & Discussion

  1. Notice

As an initial matter, the Court notes that Defendant did not file a proof of service for the instant Notice of Motion and Motion.

Code of Civil Procedure section 1005 requires that all moving and supporting papers for a motion be served and filed at least 16 court days before the hearing on that motion. (Code Civ. Proc., § 1005, subd. (b).) “The moving and supporting documents served shall be a copy of the papers filed or to be filed with the court.” (Id.) (Italics added.) However, “[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.]” (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7.) Because Plaintiff filed an Opposition to the Motion, it has waived any challenges as to notice.

  1. CCP 473(b)

  1. Discretionary Relief

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) Under the discretionary provision, an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“Mistake is not a ground for relief…when ‘the court finds that the “mistake” is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law....’ [Citation.] (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229.) “While not every mistake of an attorney constitutes excusable neglect…calendar errors by an attorney or member of his staff are, under appropriate circumstances, excusable.” (Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 980.) Relief is appropriate where an otherwise active party commits an isolated mistake, such as a calendaring error. (Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1134-35.)

The Court notes that although Defendant requests that the Court set aside the “judgment” entered against him, it is clear from his moving papers that he is actually referring to the October 1, 2019 Order granting Plaintiff’s Motion for Summary Judgment as to the Complaint. Plaintiff opposes this Motion on the basis that it is premature as no “judgment” has been entered yet. (Oppo., p. 2:1-9.) However, the Court has discretion to set aside an order under the discretionary provision of Code of Civil Procedure section 473, subdivision (b).

Defendant’s Motion is timely. Defendant states he is the sole employee in the legal department for the entity which is responsible for the unpaid bills at issue and that employees outside of the legal department assist him with calendaring matters. (Mot., Tauger Decl., ¶ 5.) He also states that he believed his employer would resolve the unpaid bills at issue. (Id. at ¶ 6.) He further states that the filing deadlines and hearing date for the MSJ were not calendared because of “apparent uncertainty regarding whether litigation would continue.” (Id.) Defendant relied on his support staff to calendar the matter should it need to be calendared, which would ultimately be determined by his employer. (Mot., p. 5:20-23.) Because the MSJ deadlines and hearing dates were not calendared by his support staff, Defendant failed to file an opposition. (Mot., Tauger Decl., ¶ 6.)

Based on the foregoing and the fact that Defendant has been an active participant in the matter (i.e., he has filed an Answer and a Cross-Complaint), the Court exercises its discretion and finds that Defendant is entitled to relief under the discretionary provision of Section 473, subdivision (b).

  1. Mandatory Relief

The mandatory provision states in pertinent part:

“[T]he 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 subd. (b).) (Italics added.)

Defendant also argues that his unique circumstances justify the application of the mandatory relief provisions of the statute. (Mot., p. 6:12-15.) However, relief under Section 473, subdivision (b) does not apply to summary judgments “because a summary judgment is neither a ‘default,’ nor a ‘default judgment,’ nor a ‘dismissal’ within the meaning of section 473(b).” (English v. IKON Business Solutions, Inc. (2001) Cal.App.4th 130, 138.) This is true regardless of whether summary judgment was the result of a party’s counsel’s mistake or neglect. (Ibid.)

Thus, Defendant is not entitled to relief under the mandatory provision.

  1. Conclusion & Order

For the foregoing reasons, Defendant/Cross-Complainant Paul N. Tauger’s Motion is GRANTED.

Moving party is ordered to give notice.