This case was last updated from Los Angeles County Superior Courts on 07/08/2020 at 08:29:40 (UTC).

DONALD L. CRAWFORD, SR. VS ALERO MACK, JR., ET AL.

Case Summary

On 08/06/2019 DONALD L CRAWFORD, SR filed a Contract - Other Contract lawsuit against ALERO MACK, JR . This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******7216

  • Filing Date:

    08/06/2019

  • 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

SERENA R. MURILLO

 

Party Details

Plaintiff

CRAWFORD DONALD L. SR.

Defendants and Cross Defendants

MCCARTHY HOLTHUS LLP

BURKE WILLIAM

KLAM KRISTINA

HOLTHUS THOMAS J.

MACK ALERO JR.

O'HARE & GRECO

Defendant and Cross Plaintiff

MACK ALERO JR.

Attorney/Law Firm Details

Defendant and Cross Defendant Attorney

COUTTS MELISSA ROBBINS

 

Court Documents

Supplemental Declaration (name extension) - Supplemental Declaration Of Melissa Robbins Coutts in Support of Motion to Set Aside Defaults

4/2/2020: Supplemental Declaration (name extension) - Supplemental Declaration Of Melissa Robbins Coutts in Support of Motion to Set Aside Defaults

Declaration (name extension) - Declaration of Demurring Party Regarding Meet and Confer to Donald L. Crawford Sr.'s Complaint

4/2/2020: Declaration (name extension) - Declaration of Demurring Party Regarding Meet and Confer to Donald L. Crawford Sr.'s Complaint

Opposition (name extension) - Opposition to Defendants' Motion to Vacate Default

2/25/2020: Opposition (name extension) - Opposition to Defendants' Motion to Vacate Default

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike; Hearing on De...)

1/8/2020: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike; Hearing on De...)

Declaration (name extension) - Declaration of Melissa Robbins Coutts in Suport of Motion to Set Aside Defaults

2/4/2020: Declaration (name extension) - Declaration of Melissa Robbins Coutts in Suport of Motion to Set Aside Defaults

Memorandum of Points & Authorities - Memorandum of Points & Authorities

2/4/2020: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Request for Court Reporter Services by Party with Fee Waiver - Request for Court Reporter Services by Party with Fee Waiver

1/6/2020: Request for Court Reporter Services by Party with Fee Waiver - Request for Court Reporter Services by Party with Fee Waiver

Notice and Acknowledgment of Receipt - Notice and Acknowledgment of Receipt

9/11/2019: Notice and Acknowledgment of Receipt - Notice and Acknowledgment of Receipt

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

11/4/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Proof of Mailing (Substituted Service) - Proof of Mailing (Substituted Service)

11/4/2019: Proof of Mailing (Substituted Service) - Proof of Mailing (Substituted Service)

Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment

11/4/2019: Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment

Proof of Service by Substituted Service - Proof of Service by Substituted Service

11/4/2019: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Memorandum of Points & Authorities - Memorandum of Points & Authorities

11/14/2019: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

11/14/2019: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

11/14/2019: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Answer - Answer

9/11/2019: Answer - Answer

Summons - Summons on Cross Complaint

9/11/2019: Summons - Summons on Cross Complaint

Civil Case Cover Sheet - Civil Case Cover Sheet

8/6/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

41 More Documents Available

 

Docket Entries

  • 08/09/2022
  • Hearing08/09/2022 at 10:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

    Read MoreRead Less
  • 02/02/2021
  • Hearing02/02/2021 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

    Read MoreRead Less
  • 07/06/2020
  • DocketMinute Order (Hearing on Demurrer - without Motion to Strike; Hearing on De...)

    Read MoreRead Less
  • 07/06/2020
  • DocketCertificate of Mailing for (Hearing on Demurrer - without Motion to Strike; Hearing on De...) of 07/06/2020; Filed by: Clerk

    Read MoreRead Less
  • 07/06/2020
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 07/06/2020 at 10:00 AM in Spring Street Courthouse at Department 26 updated: Result Date to 07/06/2020; Result Type to Held - Taken under Submission

    Read MoreRead Less
  • 07/06/2020
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 07/06/2020 at 10:00 AM in Spring Street Courthouse at Department 26 updated: Result Date to 07/06/2020; Result Type to Held - Taken under Submission

    Read MoreRead Less
  • 07/06/2020
  • DocketHearing on Motion to Set Aside/Vacate Default (CCP 473.5) scheduled for 07/06/2020 at 10:00 AM in Spring Street Courthouse at Department 26 updated: Result Date to 07/06/2020; Result Type to Held - Taken under Submission

    Read MoreRead Less
  • 07/06/2020
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 07/06/2020 at 10:00 AM in Spring Street Courthouse at Department 26 updated: Result Date from 07/06/2020 to 07/06/2020; Result Type from Held - Taken under Submission to Held

    Read MoreRead Less
  • 07/06/2020
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 07/06/2020 at 10:00 AM in Spring Street Courthouse at Department 26 updated: Result Date from 07/06/2020 to 07/06/2020; Result Type from Held - Taken under Submission to Held

    Read MoreRead Less
  • 07/06/2020
  • DocketHearing on Motion to Set Aside/Vacate Default (CCP 473.5) scheduled for 07/06/2020 at 10:00 AM in Spring Street Courthouse at Department 26 updated: Result Date from 07/06/2020 to 07/06/2020; Result Type from Held - Taken under Submission to Held

    Read MoreRead Less
67 More Docket Entries
  • 08/06/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 08/09/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

    Read MoreRead Less
  • 08/06/2019
  • DocketComplaint; Filed by: Donald L. Crawford, Sr. (Plaintiff); As to: Alero Mack, Jr. (Defendant); Kristina Klam (Defendant); William Burke (Defendant) et al.

    Read MoreRead Less
  • 08/06/2019
  • DocketNon-Jury Trial scheduled for 02/02/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

    Read MoreRead Less
  • 08/06/2019
  • DocketCase assigned to Hon. Serena R. Murillo in Department 94 Stanley Mosk Courthouse

    Read MoreRead Less
  • 08/06/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

    Read MoreRead Less
  • 08/06/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

    Read MoreRead Less
  • 08/06/2019
  • DocketSummons on Complaint; Issued and Filed by: Clerk

    Read MoreRead Less
  • 08/06/2019
  • DocketCivil Case Cover Sheet; Filed by: Donald L. Crawford, Sr. (Plaintiff)

    Read MoreRead Less
  • 08/06/2019
  • DocketOrder on Court Fee Waiver (Superior Court); Signed and Filed by: Clerk; As to: Donald L. Crawford, Sr. (Plaintiff)

    Read MoreRead Less
  • 08/06/2019
  • DocketRequest to Waive Court Fees; Filed by: Donald L. Crawford, Sr. (Plaintiff)

    Read MoreRead Less

Tentative Rulings

Case Number: 19STLC07216    Hearing Date: July 06, 2020    Dept: 26

Crawford v. Mack, et al.

DEMURRERS

(CCP §§ 430.31, et seq.)

PROCEEDING:    DEMURRER TO COMPLAINT

TENTATIVE RULING:

Defendants Kristina Klam, Thomas J. Holthus, and McCarthy Holthus, LLP’s Demurrer to Plaintiff Donald Crawford’s Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.  

ANALYSIS:

On August 6, 2019, Plaintiff Donald Crawford Sr. (“Plaintiff”) filed an action for breach of contract, common counts, fraud and unfair business practices against Defendants Alero Mack Jr. (“Mack”), Kristina Klam (“Klam”), William Burke (“Burke”), Thomas J. Holthus (“Holthus”), and McCarthy & Holthus, LLP (“M&H”) (collectively, “Defendants”).

On September 11, 2019, Defendant Mack filed a Cross-Complaint against Defendants Burke, Holthus, Klam, M&H, and O’Hare & Greco (“O’Hare”) for indemnification, apportionment of fault, declaratory relief, breach of contract, and negligence.

On November 4, 2019, Defendant/Cross Complainant Mack filed a Request for Entry of Default as to Klam, Holthus, and M&H on the Cross-Complaint, which was entered on the same day. On November 15, 2019, the Clerk rejected the Request for Entry of Default only as to M&H and requested a new/amended proof of service. (11/15/19 Notice of Rejection.) As of January 3, 2020, no new or amended proof of service as to Defendant M&H has been filed.

On November 14, 2019, Defendants Klam, Holthus, and M&H filed a Demurrer to Plaintiff’s Complaint. On December 20, 2019, Plaintiff filed an Opposition to the Demurrer. The hearing on the Demurrer to the Complaint was initially held on January 8, 2020, at which time the Court found the Demurring Defendants had not demonstrated proper notice or compliance with the meet and confer requirements. The Court continued the hearing and ordered Demurring Defendants to file supplemental papers demonstrating proper notice or compliance with the meet and confer requirements.

On February 7, 2020, Demurring Defendants filed proof of service of the Demurrer to the Complaint and notice of the continued hearing date. On April 2 and 8, 2020, Demurring Defendants filed declarations demonstrating their meet and confer efforts. (Demurrer, Supp. Coutts Decl.) The Court is therefore now satisfied that notice of the hearing on Demurrer and the meet and confer requirements have been satisfied.

Discussion

The Complaint alleges causes of action for (1) breach of contract; (2) fraud; (3) common counts; and (4) intentional tort. Demurring Defendants demur to the second and fourth causes of action for failure to allege sufficient facts and uncertainty. As special demurrers are not permitted in a court of limited jurisdiction, however, the Court will not rule on the demurrer for uncertainty. (Code Civ. Proc., § 92, subd. (c).)

2nd Cause of Action for Fraud

The demurrer for failure to allege facts sufficient to state a cause of action for fraud contends that the Complaint does not allege any of the elements of fraud, including misrepresentations, intent to induce reliance, actual and reasonable reliance, or damages. The Complaint alleges that Defendants Burke and Mack entered into an agreement whereby Mack would provide Burke with foreclosure relief services. (Compl., ¶BC-1.) Plaintiff was part of the agreement in that he was to prepare the legal documents for relating to the foreclosure relief process and would be paid by Burke and Mack for those services. (Ibid.) Burke and Mack allegedly breached the agreement by hiring another law firm, M&H, to perform the legal services. (Id. at ¶BC-2.)

In the second cause of action, Plaintiff alleges fraud by concealment against Demurring Defendants, specifically that they concealed from Plaintiff the fact that Defendant Klam had sent the check for payment to the wrong company. (Id. at ¶FR-3.) A cause of action for fraud by concealment must allege the following elements: (1) defendant concealed or suppressed a material fact; (2) defendant was under a duty to disclose the fact to the plaintiff; (3) defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) plaintiff was unaware of the fact and would not have acted in the same way knowing of the concealed or suppressed fact; (5) causation;  and (6) the plaintiff sustained damage. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.)

Save for the first, none of these elements of fraud by concealment are alleged in the Complaint. At most, the Complaint alleges that Demurring Defendants did not disclose to Plaintiff that a check for payment of services was sent to a different company. (Compl., ¶FR-3.) Even that element, however, is not alleged with specificity, as required by a fraud cause of action. (See Hills Transportation Co. v. Southwest Forest Ind., Inc. (1968) 266 Cal.App.2d 702, 707.) No information is provided regarding what exactly Demurring Defendants concealed: the fact that payment was sent to another company, the name of that company, the amount of payment sent, when the payment was purportedly sent, etc. Nor does the Complaint allege facts demonstrating that Demurring Defendants had a duty to inform Plaintiff of this payment or that Demurring Defendants’ intent was to defraud Plaintiff. (Compl., ¶FR-3(b)-(c).) Similarly, there are no facts alleged showing that Plaintiff was unaware of the payment or would have acted differently. (Ibid.) Finally, there are no allegations that Plaintiff was damaged as a result of this alleged concealment. (Ibid.)

Based on the lack of sufficient factual allegations, the demurrer to the second cause of action for fraud is sustained with leave to amend.

4th Cause of Action for Intentional Tort

The Complaint also alleges an unspecified cause of action for “Intentional Tort.” It appears to allege that Demurring Defendants’ mailing of the check to the wrong law firm was in violation of Civil Code section 2924j. (Compl., ¶IT-1.) Plaintiff alleges that Demurring Defendants were required by the statute to interplead the payment based on the competing claims to it but does not specify which provision of the statute was purportedly violated.. (Ibid.) Indeed, there is no civil cause of action provided in Civil Code section 2924j for failure to interplead funds. The statute only provides for interpleader actions with respect to persons with a recorded interest in the real property that was the subject to the trustee’s sale. (Civ. Code § 2924j, subd. (a).)

Therefore, the demurrer to the fourth cause of action is also sustained with leave to amend.

Conclusion

Defendants Kristina Klam, Thomas J. Holthus, and McCarthy Holthus, LLP’s Demurrer to Plaintiff Donald Crawford’s Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.   

Moving party to give notice.

PROCEEDING:     DEMURRER TO CROSS-COMPLAINT

TENTATIVE RULING:

Defendants Kristina Klam, Thomas J. Holthus, and McCarthy Holthus, LLP’s Demurrer to Defendant/Cross Complainant Alero Mack, Jr.’s Cross-Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.  

ANALYSIS:

On August 6, 2019, Plaintiff Donald Crawford Sr. (“Plaintiff”) filed an action for breach of contract, common counts, fraud and unfair business practices against Defendants Alero Mack Jr. (“Mack”), Kristina Klam (“Klam”), William Burke (“Burke”), Thomas J. Holthus (“Holthus”), and McCarthy & Holthus, LLP (“M&H”) (collectively, “Defendants”).

On September 11, 2019, Defendant Mack filed a Cross-Complaint against Defendants Burke, Holthus, Klam, M&H, and O’Hare & Greco (“O’Hare”) for indemnification, apportionment of fault, declaratory relief, breach of contract, and negligence.

On November 4, 2019, Defendant/Cross Complainant Mack filed a Request for Entry of Default as to Klam, Holthus, and M&H on the Cross-Complaint, which was entered on the same day. On November 15, 2019, the Clerk rejected the Request for Entry of Default only as to M&H and requested a new/amended proof of service. (11/15/19 Notice of Rejection.) As of January 3, 2020, no new or amended proof of service as to Defendant M&H has been filed.

On January 8, 2020, the initial hearing on the instant Demurrer to the Cross-Complaint came before the Court. At that time, the Court noted that Defendants Klam and Holthus were in default on the Cross-Complaint and must set aside the entry of default before proceeding with any other motion. The Court continued the hearing and also ordered Demurring Defendants to file supplemental papers demonstrating proper notice and compliance with the meet and confer requirements.

On February 7, 2020, Demurring Defendants filed proof of service of the Demurrer to the Cross-Complaint and notice of the continued hearing date. On April 2 and 8, 2020, Demurring Defendants filed declarations demonstrating their meet and confer efforts. (Demurrer, Supp. Coutts Decl.) The Court is therefore now satisfied that notice of the hearing on Demurrer and the meet and confer requirements have been satisfied. Additionally, on March 10, 2020, the Court granted Defendants Klam and Holthus’ motion for relief from entry of default.

To date, no opposition to the Demurrer to the Cross-Complaint has been filed. 

Discussion

The Cross-Complaint alleges causes of action for (1) indemnification; (2) apportionment of fault; (3) declaratory relief; (4) negligence; and (5) breach of contract. Demurring Defendants demur to each causes of action for failure to allege sufficient facts. (Citing Code of Civ. Proc., § 430.10, subd. (e).)

Allegations in Cross-Complaint

Burke hired Cross-Complainant Mack to represent him in submitting a claim for surplus funds from the trustee’s foreclosure sale of Burke’s house. (Cross-Compl., ¶BC-1.) The excess surplus funds were to go to Burke’s attorney, Renee Sanders for distribution. (Ibid.) Demurring Defendants allegedly distributed the surplus funds to Burke’s former attorney despite being in possession of a substitution of attorney form, causing Cross-Complainant Mack to be damaged in the amount of attorneys’ fees he was to receive. (Id. at ¶¶BC-1, BC-2.)

 

1st Cause of Action for Indemnification

Although the Cross-Complaint does not specify the type of indemnification—express, implied or equitable—the allegations make it clear only the equitable kind is at issue. “A right of equitable indemnity can arise only if the prospective indemnitor and indemnitee are mutually liable to another person for the same injury.” (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1177.) Here, Cross-Complainant Mack appears to allege Demurring Defendants should indemnify him if he is found liable on Plaintiff’s Complaint. (Cross-Compl., ¶7, BC-1 to BC-4.)

The Cross-Complaint, however, does not allege on what basis Demurring Defendants are liable to Plaintiff. The first cause of action is not supported any factual allegations and simply sets forth the legal elements of the claim. (Cross-Compl., ¶7.) Nor are any allegations relevant to indemnification made in the only cause of action supported by factual allegations, the fifth cause of action for breach of contract. (Id. at ¶¶BC-1 to BC-3.) Therein, Cross-Complainant states that he agreed to represent Burke with respect to Burke’s claim to the trustee’s sale surplus funds. (Ibid.) Demurring Defendants allegedly were aware of Cross-Complainant’s representation of Burke but sent the surplus funds to Burke’s former attorney at O’Hare & Greco, instead of sending the money to Burke’s current attorney, Renee Sanders. (Ibid.) There is no mention of Plaintiff, nor of Demurring Defendants’ awareness of Plaintiff’s part in the agreement with Burke and Cross-Complainant. Finally, there is no allegation regarding Demurring Defendant’s obligation to Plaintiff.

Cross-Complainant, therefore, has not shown how Demurring Defendants can be liable to Plaintiff for indemnification based on their error in sending the surplus money to Burke’s former attorney, instead of his current attorney. The demurrer to the first cause of action is sustained with leave to amend.

2nd Cause of Action for Apportionment of Fault

Apportionment of fault is based on (1) the relative responsibility of various parties for an injury to a claimant; and (2) equitable apportionment or allocation of loss, by requiring parties to pay a share of the claimant's judgment in proportion to their comparative responsibilities. (Knight v. Jewett (1992) 3 Cal. 4th 296.) As discussed above, the Cross-Complaint does not allege a legal basis for Demurring Defendants’ responsibility for the payment of the surplus funds. Therefore, it has not alleged that Demurring Defendants have relative responsibility for Plaintiff’s injury.

The demurrer to the second cause of action is sustained with leave to amend.

3rd Cause of Action for Declaratory Relief

A cause of action for declaratory relief is only appropriate where there is a present and actual controversy between the parties. (Code Civ. Proc., § 1060.) As with the first two causes of action, the Cross-Complaint does not set forth any factual allegations in support of this claim. (Cross-Compl., ¶9.) It simply relies on the allegations for the breach of contract cause of action, in which there is no statement of a present controversy. Rather, the breach of contract cause of action pertains only to actions by the parties that occurred in the past and whether Demurring Defendants must make recompense to Plaintiff and/or Cross-Complainants for the harm allegedly caused by those actions.

The demurrer to the third cause of action is sustained with leave to amend.

4th Cause of Action for Negligence

The demurrer to the fourth cause of action, therefore, is also sustained with leave to amend.

5th Cause of Action for Breach of Contract

Finally, the fifth cause of action for breach of contract fails to allege all necessary elements. There are no allegations as to how Demurring Defendants are obligated on the contract between Burke, Plaintiff and Cross-Complainant, to which they are not parties. (Id. at ¶¶BC-1 to BC-3.) Nor are there allegations as to how Demurring Defendants breached the agreement, i.e., whether the agreement required the Demurring Defendants send the surplus funds to Sanders. Assuming Demurring Defendants breached the agreement, however, Cross-Complainant has alleged that their conduct resulted in Burke and his former attorney absconding with the money owed to Cross-Complainant. (Ibid.)

Therefore, the demurrer to the fifth cause of action is sustained with leave to amend.

Conclusion

Defendants Kristina Klam, Thomas J. Holthus, and McCarthy Holthus, LLP’s Demurrer to Cross-Complainant Alero Mack, Jr.’s Cross-Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.  

Moving party to give notice.

PROCEEDING:     

MOTION TO VACATE DEFAULT

(CCP § 473(b)) 

TENTATIVE RULING:

Cross-Defendants Kristina Klam and Thomas J. Holthus’ Motion to Vacate Entry of Default on Cross-Complainant Alero Mack, Jr.’s Cross-Complaint is GRANTED. PROPOSED ANSWER TO CROSS-COMPLAINT TO BE FILED AND SERVED WITHIN 10 DAYS’ NOTICE OF THIS ORDER. 

ANALYSIS:

On August 6, 2019, Plaintiff Donald Crawford Sr. (“Plaintiff”) filed an action for breach of contract, common counts, fraud and unfair business practices against Defendants Alero Mack Jr. (“Mack”), Kristina Klam (“Klam”), William Burke (“Burke”), Thomas J. Holthus (“Holthus”), and McCarthy & Holthus, LLP (“M&H”) (collectively, “Defendants”).

On September 11, 2019, Mack filed a Cross-Complaint against Burke, Holthus, Klam, M&H, and O’Hare & Greco (“O’Hare”) for indemnification, apportionment of fault, declaratory relief, breach of contract, and negligence.

On November 4, 2019, Mack filed a Request for Entry of Default on the Cross-Complaint as to Klam, Holthus, and M&H, which was entered on the same day. On November 15, 2019, the Clerk rejected Mack’s Request for Entry of Default only as to M&H and requested a new/amended proof of service. (11/15/19 Notice of Rejection.)

On January 8, 2020, Klam, Holthus, and M&H’s Demurrer to Plaintiff’s Complaint and Demurrer to Mack’s Cross Complaint came for hearing. At that time, the Court noted that Klam and Holthus were in default on the Cross-Complaint and that they must set aside the entry of default before proceeding with any other motion.

On February 4, 2020, Cross-Defendants Klam and Holthus filed the instant Motion to Vacate Entry of Default. Cross-Complainant Mack filed an opposition on February 25, 2020.

Discussion

The instant Motion to Vacate Entry of Default initially came for hearing on March 10, 2020. At that time, the Court ruled that it was inclined to grant the Motion but that a copy of the proposed responsive pleading was not submitted with the Motion as required by the moving statute, Code of Civil Procedure section 473, subdivision (b). The Court continued the hearing on the Motion to Vacate and ordered Cross-Defendants Klam and Holthus to file a copy of their proposed responsive pleading. On April 2, 2020, Cross-Defendants Klam and Holthus file a supplemental declaration by their attorney with a copy of the proposed responsive pleading attached. (Supp. Coutts Decl., Exh. B.)

Based on Cross-Defendants Klam and Holthus’ compliance with the requirements of Code of Civil Procedure section 473, subdivision (b), the Motion to Vacate Entry of Default on Cross-Complainant Alero Mack, Jr.’s Cross-Complaint is GRANTED. THE NOVEMBER 4, 2019 ENTRY OF DEFAULT IS HEREBY VACATED. PROPOSED ANSWER TO CROSS-COMPLAINT TO BE FILED AND SERVED WITHIN 10 DAYS’ NOTICE OF THIS ORDER.

Moving party to give notice. 

Case Number: 19STLC07216    Hearing Date: March 10, 2020    Dept: 26

Crawford v. Mack, et al.

MOTION TO VACATE DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Cross-Defendants Defendants Kristina Klam and Thomas J. Holthus’ Motion to Vacate Entry of Default is CONTINUED TO APRIL 27, 2020 AT 10:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On August 6, 2019, Plaintiff Donald Crawford Sr. (“Plaintiff”) filed an action for breach of contract, common counts, fraud and unfair business practices against Defendants Alero Mack Jr. (“Mack”), Kristina Klam (“Klam”), William Burke (“Burke”), Thomas J. Holthus (“Holthus”), and McCarthy & Holthus, LLP (“M&H”) (collectively, “Defendants”).

On September 11, 2019, Mack filed a Cross-Complaint against Burke, Holthus, Klam, M&H, and O’Hare & Greco (“O’Hare”) for indemnification, apportionment of fault, declaratory relief, breach of contract, and negligence.

On November 4, 2019, Mack filed a Request for Entry of Default on the Cross-Complaint as to Klam, Holthus, and M&H, which was entered on the same day. On November 15, 2019, the Clerk rejected Mack’s Request for Entry of Default only as to M&H and requested a new/amended proof of service. (11/15/19 Notice of Rejection.)

On January 8, 2020, Klam, Holthus, and M&H’s Demurrer to Plaintiff’s Complaint and Demurrer to Mack’s Cross Complaint came for hearing. At that time, the Court noted that Klam and Holthus were in default on the Cross-Complaint and that they must set aside the entry of default before proceeding with any other motion.

On February 4, 2020, Cross-Defendants Klam and Holthus filed the instant Motion to Vacate Entry of Default. Cross-Complainant Mack filed an opposition on February 25, 2020.

Discussion

Cross-Defendants Klam and Holthus move for relief from the entry of default and default judgment pursuant to Code of Civil Procedure, section 473, subdivision (b). Under this statute, 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.) The motion must also be “accompanied by a copy of the answer or other pleading proposed to be filed therein.” (Code Civ. Proc., § 473, subd. (b).)

The motion is brought pursuant to the mandatory relief prong of section 473, subdivision (b) based on Cross-Defendants Klam and Holthus’ attorney’s mistake, inadvertence, surprise or neglect. The Motion is timely brought six months after dismissal of the action and is supported by an attorney affidavit of fault. Cross-Defendants’ attorney declares that she inadvertently failed to calendar the date a responsive pleading was due (October 25, 2019) and as a result, did not file the Demurrer to the Cross-Complaint until November 14, 2019. (Motion, Coutts Decl., ¶7.) At the time the Demurrer to the Cross-Complaint was filed, the Court’s docket did not reflect the entry of default. (Id. at ¶8 and Exh. A.)

Based on the timely request to vacate supported by an attorney affidavit of fault, the Court is inclined to grant Cross-Defendants Klam and Holthus’ Motion to Vacate Entry of Default. That the attorney’s mistake was grossly negligent, as Cross-Complainant Mack contends is not grounds to deny the motion. (Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 491.) However, Cross-Complainant Mack is correct to point out in opposition that a copy of the proposed responsive pleading is not submitted with the Motion. The Court finds this omission understandable given that the Demurrer to the Cross-Complaint was already filed, but the statute mandates inclusion of the proposed responsive pleading with the request to vacate.

Therefore, the hearing on Cross-Defendants Defendants Kristina Klam and Thomas J. Holthus’ CONTINUED TO APRIL 27, 2020 AT 10:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. AT LEAST 16 COURT DAYS PRIOR TO THE HEARING, CROSS-DEFENDANTS ARE TO FILE A SUPPLEMENTAL DECLARATION WITH THEIR PROPOSED RESPONSIVE PLEADING ATTACHED. FAILURE TO COMPLY WITH THE COURT’S ORDERS MAY RESULT IN THE MOTION BEING PLACED OFF CALENDAR OR DENIED.

Moving party to give notice.

Case Number: 19STLC07216    Hearing Date: January 08, 2020    Dept: 94

Defendants Kristina Klam, Thomas J. Holthus, and McCarthy Holthus, LLP (1) Demurrer to Plaintiff Donald Crawford’s Complaint and (2) Demurrer to Defendant Alero Mack’s Cross Complaint are CONTINUED to April 27, 2020 at 10:30 a.m. in Department 94.

ANALYSIS:

I. Background

On August 6, 2019, Plaintiff Donald Crawford Sr. (“Plaintiff”) filed an action for breach of contract, common counts, fraud and unfair business practices against Defendants Alero Mack Jr. (“Mack”), Kristina Klam (“Klam”), William Burke (“Burke”), Thomas J. Holthus (“Holthus”), and McCarthy & Holthus, LLP (“M&H”) (collectively, “Defendants”).

On September 11, 2019, Defendant Mack filed a Cross-Complaint against Defendants Burke, Holthus, Klam, M&H, and O’Hare & Greco (“O’Hare”) for indemnification, apportionment of fault, declaratory relief, breach of contract, and negligence.

On November 4, 2019, Defendant/Cross Complainant Mack filed a Request for Entry of Default as to Klam, Holthus, and M&H, which was entered on the same day. On November 15, 2019, the Clerk rejected Mack’s Request for Entry of Default only as to M&H and requested a new/amended proof of service. (11/15/19 Notice of Rejection.) As of January 3, 2020, no new or amended proof of service as to Defendant M&H has been filed.

On November 14, 2019, Defendants Klam, Holthus, and M&H filed a Demurrer to Plaintiff’s Complaint and a Demurrer to Defendant/Cross-Complainant Mack’s Cross Complaint. On December 20, 2019, Plaintiff filed an Opposition to the Demurrer. To date, no Opposition brief has been filed by Defendant/Cross Complainant Mack.

II. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

show the Court that a pleading can be amended successfully. (Id.)

I. Discussion

1. Effect of Entry of Default

 

“Entry of a defendant’s default terminates that defendant’s rights to participate in the litigation [Citation.]…” (Garcia v. Polis (2011) 192 Cal.App.4th 1474, 1479.) “A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the case affecting plaintiff’s right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.)

Here, default was entered against Klam, Holthus, and M&H on November 4, 2019. Default was later rejected on November 15, 2019, due to a faulty proof of service only as to Defendant M&H. Thus, default as to Defendants Klam and Holthus remains effective. They must first file the appropriate motion to set aside entry of default before proceeding with filing any other motion in this action.

2. Insufficient Notice

 

Code of Civil Procedure, section 1005, subdivision (b) requires that all moving and supporting papers be served and filed at least 16 court days, or 21 days if mailed, before the hearing on a motion. A proof of service of the moving papers must be filed no later than five court days before the scheduled hearing. (Cal. Rules of Court, rule 3.1300(c).)

Here, moving Defendants have not filed a proof of service for the Notice and Demurrer on Plaintiff or Defendant/Cross Complainant Mack. Demurring Defendants are ordered to file a proof of service at least 16 court days before the next scheduled hearing.

3. Meet & Confer Requirement

Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

The Court finds moving Defendants have not satisfied the meet and confer requirements set forth in Code of Civil Procedure, section 430.41. Counsel for Demurring Defendants has not filed a declaration setting forth her meet and confer efforts, if any, for neither the Demurrer to Plaintiff’s Complaint nor the Demurrer to Defendant/Cross-Complainant Mack’s Cross Complaint. Accordingly, counsel for moving Defendants is ordered to file a declaration demonstrating compliance with the meet and confer requirements at least 16 court days prior to the new hearing date.

I. Conclusion & Order

Accordingly, Defendants’ Demurrer to Plaintiff’s Complaint and Demurrer to Defendant/Cross-Complainant’s Cross-Complaint is CONTINUED to April 27, 2020 at 10:30 a.m. in Department 94.

If Defendants Klam and Holthus wish to continue participating in this action, they first must seek relief from entry of default by appropriate motion. In addition, at least 16 court days prior to the new hearing date, moving Defendants are to file a declaration demonstrating compliance with the meet and confer requirement and a proof of service as to the Demurrer to Defendant/Cross-Complainant’s Cross Complaint. Also, at least 16 court days prior to the new hearing date, the parties are to file a joint statement of the issues that remain to be resolved with respect to the Demurrers. Failure to comply with the court’s orders may result in the Demurrer being placed off calendar, or further action as the Court may see fit.

Moving parties are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.