This case was last updated from Los Angeles County Superior Courts on 05/04/2021 at 20:45:05 (UTC).

G&B LAW, LLP VS HELAYNE MUENNICHOW

Case Summary

On 05/22/2019 G B LAW, LLP filed an Other lawsuit against HELAYNE MUENNICHOW. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is WENDY CHANG. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******4945

  • Filing Date:

    05/22/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

WENDY CHANG

 

Party Details

Plaintiff

G&B LAW LLP

Defendant

MUENNICHOW HELAYNE

Attorney/Law Firm Details

Plaintiff Attorney

SEIGEL BENJAMIN S

Defendant Attorney

KURTZ GARY ALAN

 

Court Documents

Notice of Motion - Notice of Motion

7/28/2020: Notice of Motion - Notice of Motion

Motion to Set Aside/Vacate Default and / or Default Judgment - Motion to Set Aside/Vacate Default and / or Default Judgment

1/28/2021: Motion to Set Aside/Vacate Default and / or Default Judgment - Motion to Set Aside/Vacate Default and / or Default Judgment

Notice (name extension) - Notice Eratta re Notice of Motion and Motion to Vacate Default and Default Judgment

1/28/2021: Notice (name extension) - Notice Eratta re Notice of Motion and Motion to Vacate Default and Default Judgment

Reply (name extension) - Reply Of G&B Law, LLP To Motion To Vacate Default And Judgment

3/22/2021: Reply (name extension) - Reply Of G&B Law, LLP To Motion To Vacate Default And Judgment

Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)

4/5/2021: Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)

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

12/23/2020: Abstract of Judgment - Civil and Small Claims - Abstract of Judgment - Civil and Small Claims

Judgment - Judgment Judgment

9/2/2020: Judgment - Judgment Judgment

Proof of Service by Mail - Proof of Service by Mail

7/21/2020: Proof of Service by Mail - Proof of Service by Mail

Summary of the Case - Summary of the Case

7/21/2020: Summary of the Case - Summary of the Case

Declaration (name extension) - Declaration Declaration of Benjamin S. Seigel In Support of Request for Entry of Judgment

7/21/2020: Declaration (name extension) - Declaration Declaration of Benjamin S. Seigel In Support of Request for Entry of Judgment

Request for Dismissal - Request for Dismissal

7/21/2020: Request for Dismissal - Request for Dismissal

Order for Publication - Order for Publication

3/9/2020: Order for Publication - Order for Publication

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

7/1/2020: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Notice of Rejection - Ex Parte Application Without Hearing - Notice of Rejection - Ex Parte Application Without Hearing for Publication re: Helavne

12/20/2019: Notice of Rejection - Ex Parte Application Without Hearing - Notice of Rejection - Ex Parte Application Without Hearing for Publication re: Helavne

Declaration re: Due Diligence - Declaration re: Due Diligence

6/13/2019: Declaration re: Due Diligence - Declaration re: Due Diligence

Civil Case Cover Sheet - Civil Case Cover Sheet

5/22/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

Complaint - Complaint

5/22/2019: Complaint - Complaint

Summons - Summons on Complaint

5/22/2019: Summons - Summons on Complaint

16 More Documents Available

 

Docket Entries

  • 04/04/2022
  • Hearing04/04/2022 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 04/19/2021
  • DocketAnswer; Filed by: Helayne Muennichow (Defendant); As to: G&B LAW, LLP (Plaintiff)

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  • 04/05/2021
  • DocketNon-Jury Trial scheduled for 04/04/2022 at 08:30 AM in Spring Street Courthouse at Department 26

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  • 04/05/2021
  • DocketOn the Complaint filed by G&B LAW, LLP on 05/22/2019, Default entered on 07/21/2020, Vacated - .

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  • 04/05/2021
  • DocketUpdated -- On the Complaint filed by G&B LAW, LLP on 05/22/2019, judgment entered on 09/02/2020 is vacated

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  • 04/05/2021
  • DocketOn the Complaint filed by G&B LAW, LLP on 05/22/2019, judgment entered on 09/02/2020 as to Helayne Muennichow is

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  • 04/05/2021
  • DocketMinute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)

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  • 04/05/2021
  • DocketCertificate of Mailing for (Hearing on Motion to Set Aside/Vacate Default and Default Jud...) of 04/05/2021; Filed by: Clerk

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  • 04/05/2021
  • DocketHearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) scheduled for 04/05/2021 at 10:00 AM in Spring Street Courthouse at Department 26 updated: Result Date to 04/05/2021; Result Type to Held - Motion Granted

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  • 04/01/2021
  • DocketProof of Service (not Summons and Complaint); Filed by: Helayne Muennichow (Defendant); As to: G&B LAW, LLP (Plaintiff)

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34 More Docket Entries
  • 12/10/2019
  • DocketApplication Application for Publication; Filed by: G&B LAW, LLP (Plaintiff); As to: Helayne Muennichow (Defendant)

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  • 06/13/2019
  • DocketDeclaration re: Due Diligence; Filed by: G&B LAW, LLP (Plaintiff); As to: Helayne Muennichow (Defendant)

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  • 05/23/2019
  • DocketNon-Jury Trial scheduled for 11/18/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 05/23/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 05/25/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 05/23/2019
  • DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk Courthouse

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  • 05/22/2019
  • DocketComplaint; Filed by: G&B LAW, LLP (Plaintiff); As to: Helayne Muennichow (Defendant)

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  • 05/22/2019
  • DocketCivil Case Cover Sheet; Filed by: G&B LAW, LLP (Plaintiff); As to: Helayne Muennichow (Defendant)

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  • 05/22/2019
  • DocketSummons on Complaint; Issued and Filed by: G&B LAW, LLP (Plaintiff); As to: Helayne Muennichow (Defendant)

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  • 05/22/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 05/22/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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Tentative Rulings

Case Number: 19STLC04945    Hearing Date: April 5, 2021    Dept: 26

G&B Law, LLC v. Muennichow, et al.

VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b), 473(d))

TENTATIVE RULING:

Defendant Helayne Muennichow’s Motion to Vacate Default and Default Judgment is GRANTED.

ANALYSIS:

Plaintiff G&B Law, LLC (“Plaintiff”) filed the instant action for breach of contract and common counts against Defendant Helayne Muennichow (“Defendant”) on May 22, 2019. The Court granted Plaintiff’s application for service by publication and Plaintiff filed proof of service by publication on May 26, 2020. Following Defendant’s failure to respond to the Complaint, the Court entered her default on July 1, 2020.

Defendant filed a Motion to Vacate Default on July 28, 2020.

Default judgment was then entered against Defendant on September 2, 2020 and the hearing date on the Motion to Vacate Default was placed off calendar. Defendant filed the instant Motion to Vacate Default and Default Judgment on January 28, 2021. Plaintiff filed an opposition (entitled “reply”) on March 22, 2021 and Defendant replied on March 23, 2021.

Discussion

Defendant moves for relief from the default pursuant to Code of Civil Procedure section 473, subdivisions (b) and (d). The Court will address each basis in turn.

Code of Civil Procedure section 473, subdivision (b)

Under Code of Civil Procedure section 473, subdivision (b), 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 defendant’s proposed pleading. (Code Civ. Proc., § 473, subd. (b).)

The Court finds the Motion is timely. The first Motion to Vacate was filed less one month after entry of default. Through no fault of Defendant or defense counsel, the hearing on the first Motion to Vacate was placed off calendar. Defendant then filed the instant Motion to Vacate Default and Default Judgment on January 28, 2021, which was also within six months of entry of default. The first Motion is also accompanied by an attorney affidavit of fault that explains defense counsel was dealing with a health condition that involved debilitating pain, surgery and recovery from surgery from March to May 2020. (Motion, filed 7/28/20, Kurtz Decl., ¶¶6-8.) As a result, defense counsel neglected to monitor the case and no response was made after the proof of service by publication was filed. (Id. at ¶8.) A copy of Defendant’s proposed Answer is attached to the instant Motion. (Motion, Kurtz Decl., Exh. 3.)

Based on the timely motion supported by an attorney affidavit of fault, it is mandatory that the Court vacate the entry of default. (Code Civ. Proc., § 473, subd. (b).) The Court further finds that the default judgment should not have been entered given that the first Motion to Vacate was filed prior to entry of judgment. The policy of the Court is to stay any pending default judgment upon the filing of a motion to vacate default. Otherwise, if default judgment is entered, any future hearing date on the motion to vacate would be taken off calendar and a moving defendant would be deprived of the hearing on the motion to vacate. In fact, that is what happened in this case and forced Defendant to file a second Motion to Vacate.

Therefore, the Court finds Defendant is entitled to an order vacating the entry of default and default judgment under Code of Civil Procedure section 473, subdivision (b).

Code of Civil Procedure section 473, subdivision (d)

Under Code of Civil Procedure section 473, subdivision (d), “[t]he court may, .... on motion of either party after notice to the other party, set aside any void judgment or order.” When service of the Summons and Complaint is by publication, strict compliance with the service statutes is required. (Calvert v. Al Binali (2018) 29 Cal.App.5th 954, 963.) Service by publication must be “in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served.” (Code Civ. Proc., § 415.50, subd. (b).) Here, Defendant protests that publication of the Summons in the Los Angeles Daily Journal is not the newspaper most likely to give notice to a party who lives in Riverside County. The Application for Publication lists Defendant’s last known address as 38685 Calle De Lobo, Murrieta, County of Riverside, California. (App. for Pub., filed 3/4/20, p. 3.)

No explanation is provided for publication of the Summons in the Los Angeles Daily Journal. In opposition, Plaintiff’s own evidence demonstrates that the Los Angeles Daily Journal has extremely limited readership in Riverside County. Specifically, in the entire county, the Los Angeles Daily Journal only has 95 subscribers. (Opp., Ireland Decl., ¶2.) Plaintiff has not shown that publication in the Los Angeles Daily Journal is “most likely to give actual notice to the party to be served.” Therefore, the service by publication did not comport with the requirements of Code of Civil Procedure section 415.50 and is void under Code of Civil Procedure section 473, subdivision (d).

The entry of default and default judgment are also vacated on this statutory basis.

Conclusion

Defendant Helayne Muennichow’s Motion to Vacate Default and Default Judgment is GRANTED.

Court clerk to give notice.

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