EISNER, A PROFESSIONAL CORPORATION, A CALIFORNIA CORPORATION VS JOE SILVER , ET AL.

Tentative Rulings

Case Number: 19STLC03813    Hearing Date: September 23, 2020    Dept: 26

Eisner, APC v. Silver, et al.

MOTION TO VACATE DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Defendants Joel Silver, Non Stop Productions, LLC and Woodburn, Inc. fka Silver Pictures Management, Inc.’s Motion to Vacate Entry of Default on the Complaint is GRANTED. THE COURT HEREBY VACATES THE DEFAULTS ENTERED ON MAY 11, 2020. DEFENDANTS ARE TO FILE AND SERVE THE RESPONSIVE PLEADING WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

Plaintiff Eisner, APC (“Plaintiff”) filed the instant action for breach of retainer agreement against Defendants Joel Silver, Non Stop Productions, LLC and Woodburn, Inc. fka Silver Pictures Management, Inc. (“Defendants”) on April 17, 2019. Service of the Summons and Complaint was not effectuated until March 6, 2020. On May 11, 2020, the Court entered default against Defendants.

Defendants filed the instant Motion to Vacate Entry of Default on June 12, 2020. To date, no opposition has been filed.

Discussion

Defendants move for relief from the default pursuant to Code of Civil Procedure, section 473, subdivision (b), under which 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 moving party’s responsive pleading. (Code Civ. Proc., § 473, subd. (b).)

The Motion is brought under both the discretionary and mandatory provisions of the statute. Furthermore, “[i]f the prerequisites for the application of the mandatory provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.)

The Motion was filed less than six months after entry of default, making it timely under the mandatory provision. It is also accompanied by an attorney affidavit of fault that explains Defendants forwarded the Summons and Complaint to attorneys Dennis B. Ellman and Robert Marshall at Greenberg Glusker Fields Claman & Machtinger LLP (“Greenberg Gluckster”). (Motion, Silver Decl., ¶¶2-6.) Greenberg Gluckster has been Defendant Silver’s primary law firm for many years and were involved in negotiations with Plaintiff regarding the claim at issue in this action back in 2016. (Id. at ¶2.) Attorneys Ellman and Marshall at Greenberg Gluckster, however, did not attend to the papers sent by Defendant prior to entry of default. Attorney Ellman left for vacation on March 6, 2020 and upon returning to Los Angeles two weeks later was instructed not to come into the office because stay-at-home orders were issued in response to the global COVID-19 pandemic. (Motion, Ellman Decl., ¶¶4-5.) Attorney Ellman does not recall seeing emails regarding this action during that time. (Ibid.) Attorney Marshall meanwhile, had been hospitalized with a serious health condition earlier this year and had performed little to no work for Greenberg Gluckster since that time. (Id. at ¶5.) The supporting affidavits demonstrate that Defendants’ failure to respond to the Complaint was the result of Greenberg Gluckster’s surprise, mistake, inadvertence or excusable neglect.

Finally, the Motion is accompanied by a copy of Defendants’ proposed Answer to the Complaint. (Motion, Silver Decl., Exh. B.)

Conclusion

Therefore, Defendants Joel Silver, Non Stop Productions, LLC and Woodburn, Inc. fka Silver Pictures Management, Inc.’s Motion to Vacate Entry of Default on the Complaint is GRANTED. THE COURT HEREBY VACATES THE DEFAULTS ENTERED ON MAY 11, 2020. DEFENDANTS ARE TO FILE AND SERVE THE RESPONSIVE PLEADING WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Moving party to give notice.