This case was last updated from Los Angeles County Superior Courts on 02/29/2020 at 02:41:35 (UTC).

FIRE PROTECTION GROUP, INC. VS BRUCE MARDER, ET AL.

Case Summary

On 08/30/2018 FIRE PROTECTION GROUP, INC filed a Contract - Other Contract lawsuit against BRUCE MARDER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is WENDY CHANG. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******1225

  • Filing Date:

    08/30/2018

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

WENDY CHANG

 

Party Details

Plaintiff

FIRE PROTECTION GROUP INC.

Defendants

2301 SM INC.

MARDER BRUCE

Attorney/Law Firm Details

Plaintiff Attorney

GOODMAN HOWARD

 

Court Documents

Abstract of Judgment - Civil and Small Claims - Abstract of Judgment - Civil and Small Claims

12/19/2019: Abstract of Judgment - Civil and Small Claims - Abstract of Judgment - Civil and Small Claims

Writ of Execution - Writ of Execution (Los Angeles)

12/27/2019: Writ of Execution - Writ of Execution (Los Angeles)

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

4/16/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Declaration Pursuant to 585 CCP in Support of Default Judgment - Declaration Pursuant to 585 CCP in Support of Default Judgment

4/16/2019: Declaration Pursuant to 585 CCP in Support of Default Judgment - Declaration Pursuant to 585 CCP in Support of Default Judgment

Declaration of Interest, Costs and Attorney Fees - Declaration of Interest, Costs and Attorney Fees

4/16/2019: Declaration of Interest, Costs and Attorney Fees - Declaration of Interest, Costs and Attorney Fees

Request for Dismissal - Request for Dismissal

4/16/2019: Request for Dismissal - Request for Dismissal

Judgment - Judgment - Default Judgment By Court - Before Trial - 05/20/2019 entered for Plaintiff Fire Protection Group, Inc. against Defendant 2301 SM, Inc.; Defendant Bruce Marder.

5/20/2019: Judgment - Judgment - Default Judgment By Court - Before Trial - 05/20/2019 entered for Plaintiff Fire Protection Group, Inc. against Defendant 2301 SM, Inc.; Defendant Bruce Marder.

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

12/7/2018: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Proof of Service by Substituted Service

9/13/2018: Proof of Service by Substituted Service

Proof of Service by Substituted Service

9/13/2018: Proof of Service by Substituted Service

Summons - on Complaint

8/30/2018: Summons - on Complaint

Civil Case Cover Sheet

8/30/2018: Civil Case Cover Sheet

Complaint

8/30/2018: Complaint

Notice of Case Assignment - Limited Civil Case

8/30/2018: Notice of Case Assignment - Limited Civil Case

2 More Documents Available

 

Docket Entries

  • 12/27/2019
  • DocketWrit of Execution (Los Angeles); Issued by: Fire Protection Group, Inc. (Plaintiff); As to: Bruce Marder (Defendant); County: Los Angeles

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  • 12/19/2019
  • DocketAbstract of Judgment - Civil and Small Claims; Issued by: Fire Protection Group, Inc. (Plaintiff)

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  • 06/05/2019
  • DocketNon-Jury Trial scheduled for 02/27/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Vacated by Court on 06/05/2019

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  • 06/05/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 09/02/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Vacated by Court on 06/05/2019

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  • 05/20/2019
  • DocketJudgment - Default Judgment By Court - Before Trial - 05/20/2019 entered for Plaintiff Fire Protection Group, Inc. against Defendant 2301 SM, Inc. Defendant Bruce Marder. Filed by: Clerk

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  • 05/20/2019
  • DocketDefault judgment by Court entered for Plaintiff Fire Protection Group, Inc. against Defendant 2301 SM, Inc. and Defendant Bruce Marder on the Complaint filed by Fire Protection Group, Inc. on 08/30/2018 for damages of $13,468.02, attorney fees of $794.00, interest of $1,281.52, and costs of $458.00 for a total of $16,001.54.; Other: Foreclosure of mechanic's lien. Please see attachment 7.

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  • 04/16/2019
  • DocketRequest for Entry of Default / Judgment; Filed by: Fire Protection Group, Inc. (Plaintiff); As to: Bruce Marder (Defendant); 2301 SM, Inc. (Defendant)

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  • 04/16/2019
  • DocketDeclaration of Interest, Costs and Attorney Fees; Filed by: Fire Protection Group, Inc. (Plaintiff); As to: Bruce Marder (Defendant); 2301 SM, Inc. (Defendant)

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  • 04/16/2019
  • DocketDeclaration Pursuant to 585 CCP in Support of Default Judgment; Filed by: Fire Protection Group, Inc. (Plaintiff)

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  • 04/16/2019
  • DocketRequest for Dismissal; Filed by: Fire Protection Group, Inc. (Plaintiff)

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2 More Docket Entries
  • 12/07/2018
  • DocketRequest for Entry of Default / Judgment; Filed by: Fire Protection Group, Inc. (Plaintiff); As to: Bruce Marder (Defendant); 2301 SM, Inc. (Defendant)

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  • 09/13/2018
  • DocketProof of Service by Substituted Service; Filed by: Fire Protection Group, Inc. (Plaintiff); As to: 2301 SM, Inc. (Defendant); Proof of Mailing Date: 09/11/2018; Service Cost: 44.00; Service Cost Waived: No

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  • 09/13/2018
  • DocketProof of Service by Substituted Service; Filed by: Fire Protection Group, Inc. (Plaintiff); As to: Bruce Marder (Defendant); Proof of Mailing Date: 09/11/2018; Service Cost: 44.00; Service Cost Waived: No

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  • 08/30/2018
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 08/30/2018
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 08/30/2018
  • DocketCivil Case Cover Sheet; Filed by: Fire Protection Group, Inc. (Plaintiff)

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  • 08/30/2018
  • DocketComplaint; Filed by: Fire Protection Group, Inc. (Plaintiff); As to: Bruce Marder (Defendant); 2301 SM, Inc. (Defendant)

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  • 08/30/2018
  • DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk Courthouse

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  • 08/30/2018
  • DocketNon-Jury Trial scheduled for 02/27/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

    Read MoreRead Less
  • 08/30/2018
  • DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 09/02/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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Tentative Rulings

Case Number: 18STLC11225    Hearing Date: August 12, 2020    Dept: 26

Fire Protection Group, Inc. v. Marder, et al.

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(d))

TENTATIVE RULING:

Defendants Bruce Marder and 2301 SM, Inc.’s Motion to Set Aside Entry of Default and Default Judgment is DENIED.

ANALYSIS:

On August 30, 2018, Plaintiff Fire Protection Group, Inc. (“Plaintiff”) filed this action against Defendants Bruce Marder (“Defendant Marder”) and 2301 SM, Inc. (“Defendant 2301”). On December 7, 2018, the Court entered Defendants’ default and thereafter entered default judgment against Defendants on May 20, 2019.

On March 27, 2020, Defendants filed the instant Motion to Vacate Default and Default Judgment. Plaintiff filed its opposition on June 19, 2020 and Defendants replied on August 5, 2020.

Discussion

The Motion is brought pursuant to the Court’s equitable power to set aside a judgment due to an attorney’s affirmative misconduct:

ICalifornia courts allow relief from default or default judgment based on equity “where the attorney's neglect is of that extreme degree amounting to positive misconduct, and the person seeking relief is relatively free from negligence.” (Carroll, supra, 32 Cal.3d at p. 898, 187 Cal.Rptr. 592, 654 P.2d 775; internal quotes omitted.) This exception is premised on the concept such extreme misconduct “obliterates the existence of the attorney-client relationship” (Ibid.) and for this reason the client has no attorney from whom negligence can be imputed. Various formulations of this exception can be found throughout the Carroll opinion. (Id. at pp. 898–900, 187 Cal.Rptr. 592, 654 P.2d 775.) They all boil down to this: Imputation of the attorney's neglect to the client ceases at the point where “abandonment of the client appears.” (Id. at p. 900, 187 Cal.Rptr. 592, 654 P.2d 775.)

What constitutes “abandonment” of the client depends on the facts in the particular action. Even where abandonment is shown, however, the courts also consider equitable factors in deciding whether the dismissal of an action should be set aside. These factors include the client's own conduct in pursuing and following up the case (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 739, 216 Cal.Rptr. 300), whether the defendant would be prejudiced by allowing the case to proceed (Fleming v. Gallegos (1994) 23 Cal.App.4th 68, 74–75, 28 Cal.Rptr.2d 350) and whether the dismissal was discretionary or mandatory (Daley v. County of Butte (1964) 227 Cal.App.2d 380, 394, 38 Cal.Rptr. 693). The courts must also balance the public policy favoring a trial on the merits against the public policies favoring finality of judgments and disfavoring unreasonable delays in litigation (id. at p. 390, 38 Cal.Rptr. 693) and the policy an innocent client should not have to suffer from its attorney's gross negligence against the policy a grossly incompetent attorney should not be relieved from the consequences of his or her incompetence. (Fleming, supra, 23 Cal.App.4th at p. 75, 28 Cal.Rptr.2d 350.)

(Seacall Development, Ltd. v. Santa Monica Rent Control Bd. (1999) 73 Cal.App.4th 201, 205.) In opposition, Plaintiff disputes that defense counsel acted with positive misconduct and contends that defense counsel is trying to cover up for Defendants’ failure to defend this action.

The Motion is supported by the declaration of defense counsel, Brandon C. Fernald (“Attorney Fernald”), who states that he has represented Defendants on a separate construction-defect lawsuit since 2017. (Motion, Fernald Decl., ¶6.) Attorney Fernald declares that when this action was filed, he offered to represent Defendants in an email dated September 21, 2018, which Defendants accepted. (Id. at ¶¶7-9.) However, no copy of the email is attached. Attorney Fernald then contends he assigned the matter to an associate, Valentine Aghakhani (“Aghakhani”) who unexpectedly left his firm in October 2018. (Id. at ¶10.) Apparently as a result, no response was filed to the Complaint on Defendant’s behalf. (Id. at ¶11.) When Defendant Marder contacted Attorney Fernald on December 26, 2018 regarding the request for entry of default, Attorney Fernald again responded that he would take care of it. (Id. at ¶13.) Due to the fact that he was on holiday at the time, Attorney Fernald forgot about the matter. (Id. at ¶¶13-14.) Again, no copies of the email exchange are attached to the declaration.

Over the next 15 months, Defendant Marder purportedly asked about the status of the case but Attorney Fernald failed to check on it despite assurances to the contrary. (Id. at ¶¶15-16.) In March 2020, Defendant Marder apparently called Attorney Fernald to report that his bank account had been garnished. (Id. at ¶17.) It was at that time that Attorney Fernald finally looked into the case and discovered the entry of default judgment. (Id. at ¶18.)

The Court agrees with the opposition that Attorney Fernald’s declaration regarding his complete failure to represent Defendants does not carry Defendants’ burden of proof. The lack of any documentary evidence of communications between Attorney Nadler and Defendants amounts to a failure of proof regarding the existence of an attorney-client relationship regarding this case. This is further reinforced by the lack of supporting documentation with Defendant Marder’s declaration or Defendants’ reply, which could have easily addressed the arguments in the opposition. (Motion, Marder Decl.; Reply.) Without sufficient proof that Defendants retained Attorney Fernald in the first instance, the Court cannot find that relief from the default and default judgment based on positive attorney misconduct is appropriate. Nor is Defendants’ reliance on Orange Empire Nat. Bank v. Kirk (1968) 259 Cal.App.2d 347 helpful. While that case also involved a situation where an attorney agreed to represent the defendant and then did nothing, effectively abandoning the defendant, there was no question regarding proof of the attorney-client relationship. (Orange Empire Nat. Bank v. Kirk (1968) 259 Cal.App.2d 347, 350.)

Conclusion

Therefore, the Motion to Vacate the Default and Default Judgment is DENIED.

Moving party to give notice.

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