This case was last updated from Los Angeles County Superior Courts on 11/24/2021 at 03:09:08 (UTC).

HARKHAM INDUSTRIES, INC., A CALIFORNIA CORPORATION VS CREDITORS ADJUSTMENT BUREAU, INC., A CALIFORNIA CORPORATION

Case Summary

On 05/15/2020 HARKHAM INDUSTRIES, INC , A CALIFORNIA CORPORATION filed an Other - Injunction lawsuit against CREDITORS ADJUSTMENT BUREAU, INC , A CALIFORNIA CORPORATION. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******4199

  • Filing Date:

    05/15/2020

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Other - Injunction

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

HARKHAM INDUSTRIES INC. A CALIFORNIA CORPORATION DBA JONATHAN MARTIN

Defendant

CREDITORS ADJUSTMENT BUREAU INC. A CALIFORNIA CORPORATION

Attorney/Law Firm Details

Plaintiff Attorney

SAMUELS PAUL

Defendant Attorney

FREED KENNETH

 

Court Documents

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

5/15/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

First Amended Standing Order - First Amended Standing Order

5/15/2020: First Amended Standing Order - First Amended Standing Order

Summons - Summons on Complaint

5/15/2020: Summons - Summons on Complaint

Civil Case Cover Sheet - Civil Case Cover Sheet

5/15/2020: Civil Case Cover Sheet - Civil Case Cover Sheet

Complaint - Complaint

5/15/2020: Complaint - Complaint

Answer - Answer

6/4/2020: Answer - Answer

Judgment - Judgment (Proposed) Judgment by Court

9/17/2021: Judgment - Judgment (Proposed) Judgment by Court

Memorandum of Costs (Summary) - Memorandum of Costs (Summary)

9/14/2021: Memorandum of Costs (Summary) - Memorandum of Costs (Summary)

Minute Order - Minute Order (Hearing on Motion for Summary Judgment)

9/13/2021: Minute Order - Minute Order (Hearing on Motion for Summary Judgment)

Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion for Summary Judgment) of 09/13/2021

9/13/2021: Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion for Summary Judgment) of 09/13/2021

Objection (name extension) - Objection DEFENDANT'S OBJECTIONS TO THE DECLARATION OF HARRY KAPLAN

9/8/2021: Objection (name extension) - Objection DEFENDANT'S OBJECTIONS TO THE DECLARATION OF HARRY KAPLAN

Reply (name extension) - Reply DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

9/8/2021: Reply (name extension) - Reply DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Declaration (name extension) - Declaration re filing of Opposition to MSJ

9/7/2021: Declaration (name extension) - Declaration re filing of Opposition to MSJ

Separate Statement - Separate Statement

8/30/2021: Separate Statement - Separate Statement

Motion re: (name extension) - Motion re: Notice of Motion and Motion for Summary Judgment

6/16/2021: Motion re: (name extension) - Motion re: Notice of Motion and Motion for Summary Judgment

Separate Statement - Separate Statement

6/16/2021: Separate Statement - Separate Statement

4 More Documents Available

 

Docket Entries

  • 09/27/2021
  • DocketNon-Appearance Case Review Re: Status of Proposed Judgment scheduled for 09/28/2021 at 09:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 09/27/2021

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  • 09/17/2021
  • DocketUpdated -- Judgment (Proposed) Judgment by Court: Filed By: Creditors Adjustment Bureau, Inc., a California corporation (Defendant); Result: Granted; Result Date: 09/17/2021

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  • 09/14/2021
  • DocketMemorandum of Costs (Summary); Filed by: Harkham Industries, Inc., a California corporation (Plaintiff); Creditors Adjustment Bureau, Inc., a California corporation (Defendant); As to: Harkham Industries, Inc., a California corporation (Plaintiff); Total Costs: 924.40

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  • 09/13/2021
  • DocketNon-Appearance Case Review Re: Status of Proposed Judgment scheduled for 09/28/2021 at 09:30 AM in Spring Street Courthouse at Department 25

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  • 09/13/2021
  • DocketMinute Order (Hearing on Motion for Summary Judgment)

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  • 09/13/2021
  • DocketCertificate of Mailing for (Hearing on Motion for Summary Judgment) of 09/13/2021; Filed by: Clerk

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  • 09/13/2021
  • DocketHearing on Motion for Summary Judgment scheduled for 09/13/2021 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 09/13/2021; Result Type to Held - Motion Granted

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  • 09/13/2021
  • DocketNon-Jury Trial scheduled for 11/12/2021 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 09/13/2021

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  • 09/13/2021
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 05/19/2023 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 09/13/2021

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  • 09/08/2021
  • DocketReply DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; Filed by: Creditors Adjustment Bureau, Inc., a California corporation (Defendant)

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5 More Docket Entries
  • 06/16/2021
  • DocketHearing on Motion for Summary Judgment scheduled for 09/13/2021 at 10:30 AM in Spring Street Courthouse at Department 25

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  • 06/04/2020
  • DocketAnswer; Filed by: Creditors Adjustment Bureau, Inc., a California corporation (Defendant); As to: Harkham Industries, Inc., a California corporation (Plaintiff)

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  • 05/15/2020
  • DocketNon-Jury Trial scheduled for 11/12/2021 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 05/15/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 05/19/2023 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 05/15/2020
  • DocketComplaint; Filed by: Harkham Industries, Inc., a California corporation (Plaintiff); As to: Creditors Adjustment Bureau, Inc., a California corporation (Defendant)

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  • 05/15/2020
  • DocketCivil Case Cover Sheet; Filed by: Harkham Industries, Inc., a California corporation (Plaintiff); As to: Creditors Adjustment Bureau, Inc., a California corporation (Defendant)

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  • 05/15/2020
  • DocketSummons on Complaint; Issued and Filed by: Harkham Industries, Inc., a California corporation (Plaintiff); As to: Creditors Adjustment Bureau, Inc., a California corporation (Defendant)

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  • 05/15/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 05/15/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 05/15/2020
  • DocketCase assigned to Hon. James E. Blancarte in Department 25 Spring Street Courthouse

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Tentative Rulings

b'

Case Number: 20STLC04199 Hearing Date: September 13, 2021 Dept: 25

PROCEEDINGS: MOTION\r\nFOR SUMMARY JUDGMENT

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MOVING PARTY: Defendant\r\nCreditors Adjustment Bureau, Inc.

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RESP. PARTY: Plaintiff Harkham Industries, Inc.

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MOTION FOR SUMMARY JUDGMENT

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(CCP § 437c)

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TENTATIVE RULING:

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Defendant\r\nCreditors Adjustment Bureau, Inc.’s Motion for Summary Judgment is GRANTED.\r\nDefendant CAB is ordered to file a proposed judgment within ten (10) days of\r\nnotice of this order.

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SERVICE: \r\n

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[X] Proof of Service Timely\r\nFiled (CRC 3.1300) OK

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[X] Correct Address (CCP 1013,\r\n1013a) OK

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[X] 75/80 Day Lapse (CCP 12c\r\nand 1005 (b)) OK

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OPPOSITION: Filed on August 30 &\r\nSeptember 7, 2021 [X] Late [ ] None

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REPLY: Filed on September\r\n8, 2021 [ ] Late [ ] None

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ANALYSIS:

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I. \r\nBackground\r\n

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On May 15, 2020, Plaintiff Harkham Industries, Inc. dba\r\nJonathan Martin (“Plaintiff”) filed an action against Defendant Creditors\r\nAdjustment Bureau (“Defendant” or “CAB”). Defendant filed an Answer on June 4,\r\n2020.

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Defendant filed the instant Motion for Summary Judgment\r\n(“the Motion”) on June 16, 2021. Plaintiff filed a separate statement on August\r\n30 and a tardy memorandum in opposition on September 7, which the Court has\r\nconsidered. Defendant filed a reply brief on September 8.

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II. \r\nLegal\r\nStandard

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A party seeking summary judgment has the burden of\r\nproducing evidentiary facts sufficient to entitle him/her to judgment as a\r\nmatter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an\r\naffirmative showing that he/she is entitled to judgment irrespective of whether\r\nor not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

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When a Defendant or Cross-Defendant seeks summary\r\njudgment, he/she must show either\r\n(1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete\r\ndefense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When\r\na Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce\r\nadmissible evidence on each element of each cause of action on which judgment\r\nis sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s\r\n“affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’\r\nfacts” and be strictly construed. (Scalf\r\nv. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d\r\n629, 639.)

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The opposing party on a motion for\r\nsummary judgment is under no evidentiary burden to produce rebuttal evidence\r\nuntil the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999)\r\n75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden\r\nshifts to the opposing party to show, with admissible evidence, that there is a\r\ntriable issue requiring the weighing procedures of trial. (Code Civ. Proc., §\r\n437c, subd. (p).) The opposing party may not simply rely on his/her allegations\r\nto show a triable issue but must present evidentiary facts that are substantial\r\nin nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any\r\nalternative request for summary adjudication of issues, such alternative relief\r\nmust be clearly set forth in the Notice of Motion and the general burden-shifting\r\nrules apply but the issues upon which summary adjudication may be sought are\r\nlimited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for\r\nsummary adjudication shall be granted only if it completely disposes of a cause\r\nof action, an affirmative defense, a claim for damages, or an issue of duty.”\r\n(Code Civ. Proc., § 437c, subd. (f)(1).)

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III. \r\nEvidentiary\r\nObjections

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Defendant CAB’s evidentiary objections to the declaration\r\nof Henry Kaplan are OVERRULED as to Nos. 1-4.

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IV. \r\nDiscussion\r\n

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Defendant moves for summary judgment on the basis that\r\nthere are no triable issues of material fact concerning the essential elements\r\nof Plaintiff’s three causes of action. (Mot., pp. 1-2.)

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Plaintiff asserts three causes of action: (1) for\r\nequitable relief to set aside the default judgment entered in Creditors\r\nAdjustment Bureau v. Jonathan Martin, Inc., et al., Case No. 18STLC11299\r\n(the “Underlying Action”), (2) for declaratory relief, and (3) for injunctive\r\nrelief. (Compl., pp. 1-6.)

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An action to vacate a judgment obtained in a\r\nlimited civil case through extrinsic fraud, mistake, inadvertence, or excusable\r\nneglect is a limited civil case in equity. (Code Civ. Proc., § 86, subd.\r\n(b)(3).) Limited courts, however, do not have jurisdiction to issue declaratory\r\nrelief. Specifically, pursuant to Code of Civil Procedure section 580,\r\nsubdivision (b)(4), “[d]eclaratory relief, except as authorized by section 86,”\r\nis not permissible in a limited jurisdiction action. Section 86 permits an\r\naction for declaratory relief when it is brought by way of cross-complaint or\r\nwhen sought to conduct a trial after a nonbinding fee arbitration between an\r\nattorney and his client. (Code Civ. Proc., § 86, subd. (a)(7).) Neither applies\r\nhere.

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Further, limited jurisdiction courts, such as this one,\r\ndo not have the authority to issue permanent injunctive relief. (Code Civ.\r\nProc., § 86, subd. (a)(8) [“An action to issue a temporary restraining order or\r\npreliminary injunction” is a limited civil case].)

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Plaintiff seeks a declaration that\r\nthe judgment entered in the Underlying Action is void, that the Underlying\r\nAction should be dismissed with prejudice, and an injunction preventing\r\nDefendant and its successors from enforcing the judgment entered in the\r\nUnderlying Action. (Compl., p. 6.)

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Importantly,\r\nthe requests for declaratory and injunctive relief are duplicative of the\r\nrelief sought in the equitable cause of action to vacate the default judgment\r\nand are dependent on the outcome of this first cause of action. For this\r\nreason, rather than transferring the action to unlimited jurisdiction, the\r\nCourt proceeds to issue a ruling on the merits.

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A. Equitable Relief from Default\r\nJudgment

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“When a default judgment\r\nhas been obtained, equitable relief may be given only in exceptional\r\ncircumstances.” (Rappleyea v. Campbell (1994)\r\n8 Cal.4th 975, 981.) (Italics in original.) “Even where relief is no longer\r\navailable under statutory provisions, a trial court generally retains the\r\ninherent power to vacate a default judgment…where a party establishes that the\r\njudgment or order was void for lack of due process or resulted from extrinsic\r\nfraud or mistake.” (County of San Diego\r\nv. Gorham (2010) 186 Cal.App.4th 1215, 1228.)

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“To set aside a judgment based upon extrinsic\r\nmistake one must satisfy three elements. First, the defaulted party must\r\ndemonstrate that it has a meritorious case. Second, the party seeking to set\r\naside the default must articulate a satisfactory excuse for not presenting a\r\ndefense to the original action. Last, the moving party must demonstrate\r\ndiligence in seeking to set aside the default once ... discovered.” (Id., at p. 982.)

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Extrinsic fraud occurs when a party is deprived of the\r\nopportunity to present a claim or defense because it was kept in ignorance or\r\nwas in some other way fraudulently prevented from participating in the\r\nproceeding by the opposing party. (County\r\nof San Diego v. Gorham (2010) 186 Cal.App.4th at p. 1228-29.) Extrinsic\r\nmistake is “a term broadly applied when circumstances extrinsic to the\r\nlitigation have unfairly cost a party a hearing on the merits.” (Rappleyea v. Campbell (1994) 8 Cal.4th\r\n975 at p. 981.)

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B. Defendant’s Burden

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The following facts are undisputed:\r\n(1) that on August 31, 2018, Defendant CAB filed a complaint against “Jonathan\r\nMartin, Inc.” and “Harkham Industries, Inc. dba Jonathan Martin Hype JM Studio\r\nadba Blue Bird adba Jonathan Martin” (collectively, the “Underlying\r\nDefendants”) seeking damages of $13,352.00; (2) that the Underlying Defendants\r\nwere both properly served with the summons and complaint in the Underlying\r\nAction; (3) that on October 11, 2018, “Jonathan Martin, Inc.” filed an answer\r\nto the complaint in the Underlying Action; (4) that on October 14, 2018,\r\nDefendant CAB’s counsel served notice of the request for entry of default on\r\nthe Underlying Defendants; (5) that on October 25, 2018, default was entered as\r\nto “Harkham Industries, Inc.” and its DBAs’ in the Underlying Action (6) that\r\non October 1, 2019, Defendant CAB filed its request for entry of default\r\njudgment in the Underlying Action and served a copy of that request on Harkham at\r\nits business address and on Harkham’s counsel, Paul H. Samuels; (7) that\r\nHarkham received Defendant CAB’s request for entry of default judgment in the\r\nUnderlying Action in October 2019; (8) that the Court entered a default\r\njudgment on October 22, 2019 in the Underlying Action; and (9) that a conformed\r\ncopy of the judgment entered in the Underlying Action was sent to Harkham’s\r\ncounsel Paul Samuels on January 27, 2020 via email. (Def. UMF Nos. 1-10.)

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1. Satisfactory Excuse for Not Presenting a Defense\r\n& Diligence in Setting Aside Default Judgment

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Defendant CAB argues that Plaintiff\r\ndoes not have a satisfactory excuse for failing to present a defense in the\r\nUnderlying Action and that it cannot demonstrate diligence in setting aside the\r\ndefault and default judgment. (Mot., pp. 8-9.)

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As discussed above, Harkham does not\r\ndispute that it was properly served with the summons and complaint for the\r\nUnderlying Action and that only “Jonathan Martin Inc.,” filed an answer in the\r\nUnderlying Action. (Def. UMF Nos. 2, 3.) Thus, Harkham has admitted the default\r\nand default judgment are not void for improper service.

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Harkham’s excuse for not presenting a defense to the\r\nUnderlying Action is as follows. Harkham alleges that an answer in the\r\nUnderlying Action was presented to the court clerk, who was informed that it\r\nwas being presented by both Underlying Defendants, but that “the clerk\r\nscratched the name Harkham Industries, Inc. off the pleading” and “did not advise\r\nMr. Kaplan to add the name of Harkham Industries, Inc. to line 2 of the Answer.\r\n(Compl., ¶ 12, Exh. B.) Mr. Kaplan is a part-time consultant with Harkham.\r\n(9/7/21 Kaplan Decl., ¶ 1.) Harkham\r\nattaches a copy of this answer to its Complaint, but it is entirely illegible.\r\n(Id.)

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In support of this Motion, Defendant\r\nCAB attaches a readable copy the form answer filed by “Jonathan Martin, Inc.”\r\n(Mot., Frischer Decl., ¶ 3, Exh. 2.) “Jonathan Martin, Inc.” is listed in the\r\n“attorney for” section of the form answer, but “Harkham Industries, Inc.” is\r\ncrossed out. (Id.) Notably, the initials of Mr. Kaplan appear to be next\r\nto the stricken language. (Id.)

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More importantly, the body of the answer identifies only “Jonathan\r\nMartin, Inc.” as the answering party in Paragraph 2 of the form answer. (Id.)\r\nThe answer further states,“ Jonathan Martin, Inc. does not\r\nbelieve it owes the amount [illegible] by the plaintiff” and “Jonathan\r\nMartin, Inc. does not believe it owes the plaintiff anything and\r\nadditionally their claim is barred by the statute of limitations (alleged debt\r\nis from May 2011).” (Id.) (Emphasis added.) Nowhere in the body of the\r\nanswer is Harkham identified as a responding party.

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Further, it is undisputed that Harkham was served with\r\nnotice of the default requested against it in the Underlying Action in October\r\n2018. (Def. UMF No. 8.) Harkham waited approximately 19 months thereafter before\r\nseeking to set aside the default and default judgment which does not support a\r\nfinding of diligence.

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The Court finds Defendant CAB has carried its initial\r\nburden to show Plaintiff Harkham cannot establish two out of the three\r\nrequirements for equitable relief. The burden now shifts to Plaintiff Harkham\r\nto demonstrate a triable issue of material fact exists.

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C. Plaintiff Harkham’s Burden

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Harkham’s opposition brief is quite limited. It argues\r\nthat triable issues of material fact exist because (1) there is no evidence\r\nthat Defendant CAB was entitled to damages and (2) because the “undisputed\r\nevidence” in this case demonstrates “that the court clerk scratched Harkham’s\r\nname off the answer and did not advise Harkham to add its name to line 2 of the\r\nAnswer.” (Oppo., p. 2.) In arguing that\r\nthe clerk prevented Plaintiff Harkham from appearing in the Underlying Action,\r\nHarkham relies on Baske v. Burke (1981) 125 Cal.App.3d 38, 43-44 and Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-83. (Id.) These cases, however, are distinguishable.

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Baske involved a 90-year old woman who was served with a\r\nsummons and complaint. (125 Cal.App.3d 38, 38-39.) In response, she sent\r\nseveral handwritten letters to the clerk of the superior court. (Id.) The elderly defendant asked the clerk in writing to “do what was\r\nneeded to file” and offered to pay the required fees. (Id.) Although these letters were placed\r\nin the court’s records, a formal response or answer was not filed by the clerk.\r\n(Id.) The court of appeals held, in part, that equitable relief from the\r\ndefault was proper and that the clerk had erred in not filing the letters,\r\nwhich, in substance, constituted an answer. (Id.)

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In Rappleyea, the clerk\r\nmisinformed out-of-state defendants as to the correct filing fee for their\r\nanswer, resulting in the entry of default. (Rappleyea\r\nv. Campbell, supra, 8 Cal.4th\r\n975.)

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Here, Harkham does not\r\ndemonstrate any misinformation was provided to Mr. Kaplan. In addition, whether the court clerk\r\nscratched off Harkham’s name from the “attorney for” section of the form answer\r\nfiled in the underlying action has not been established. Mr. Kaplan states the\r\ncourt clerk scratched Harkham’s name off the answer but does not explain how\r\nhe knows this. Even if the court clerk had done this, the substantive portions\r\nof the answer filed in the Underlying Action identify only “Jonathan Martin,\r\nInc.” as the answering party. To the extent Harkham argues the clerk erred in\r\nfailing to advise Mr. Kaplan that the answer needed to be revised, the Court is\r\nnot persuaded. Although Jonathan Martin, Inc. filed its answer in pro per\r\nthrough Mr. Kaplan, it is well-established that self-represented litigants are\r\nheld to the same standards as an attorney. (Stover v. Bruntz (2017) 12\r\nCal.App.5th 19, 31.) Harkham cites no authority demonstrating clerks are under\r\na mandatory duty to review pleadings and suggest revisions or that a clerk’s\r\nfailure to do so constitutes grounds for equitable relief.

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Harkham also argues that it did answer the complaint in\r\nthe Underlying Action because “Harkham is a dba of Jonathan Martin.” (Def. Sep.\r\nStmt., Nos. 11-12.) For this reason, Plaintiff Harkham argues the judgment\r\nentered in the Underlying Action is void. (Plf. Sep. Stmt., No. 9.) Harkham\r\npresents no evidence of this, such as a statement of information or a fictitious\r\nbusiness name statement. Notably, Harkham admits that two\r\nseparate entities, “Jonathan Martin, Inc.” and Harkham\r\nIndustries, Inc. dba Jonathan Martin Hype JM Studio adba Blue Bird adba\r\nJonathan Martin,” were properly served with the complaint in the Underlying\r\nAction.

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It should also be noted that this answer was ineffective and\r\nsubject to being stricken as Jonathan Martin, Inc. is a corporate entity and it\r\nattempted to appear in the Underlying Action, in pro per, through Mr. Kaplan. As\r\nis well-established, a corporation may\r\nnot appear in court except through licensed counsel. Since the passage of the\r\nState Bar Act in 1927, persons may represent their own interests in legal\r\nproceedings, but may not represent the interests of another unless they are\r\nactive members of the State Bar. [Citation.]” (Hansen v. Hansen (2003)\r\n114 Cal.App.4th 618, 621.) An entity must be represented by a lawyer in legal\r\nproceedings and may not represent itself (either directly or through a\r\nnon-lawyer agent) in litigation, as such an act would be the unauthorized\r\npractice of law. (See e.g. Caressa Camille, Inc. v. Alcoholic Beverage\r\nControl Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101) (corporation); Albion\r\nRiver Watershed Protection Ass’n v. Department of Forestry & Fire\r\nProtection (1993) 20 Cal. App. 4th 34, 37 (unincorporated association); Aulisio\r\nv. Bancroft (2014) 230 Cal. App. 4th 1518, 1519-20 (trustee for trust).

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Even if Harkham could satisfy the satisfactory excuse\r\nelement, it cannot satisfy the diligence requirement. As discussed above,\r\nHarkham admits it was served with a notice of Defendant CAB’s request for entry\r\nof default on October 24, 2018. (Def. Sep. Stmt., No. 5.) Thus, it was put on\r\nnotice at least as early as October 2018 that it had not filed an answer. Yet,\r\nHarkham waited 19-months, and only after default judgment had been entered, to\r\nseek relief. Notably, Harkham’s opposition and separate statement are silent as\r\nto the reasons for the delay. On these facts, the Court cannot find Harkham has\r\ncarried its burden to show a triable issue of material fact exists as to the\r\ndiligence requirement.

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To the extent Harkham suggests Defendant CAB’s failure to\r\nwarn it would seek the entry of default in the Underlying Action mandates\r\nrelief, the Court is not persuaded. The court in Fayusi recognized\r\nattorneys have an ethical duty to warn opposing counsel before a default\r\nis taken, but they also emphasized they did not hold that an attorney must\r\nwarn opposing counsel before default is taken. (Fayusi v. Permatex (2008)\r\n167 Cal.App.4th 681, 701-03.)

\r\n\r\n

\r\n\r\n

Thus, Plaintiff Harkham has not demonstrated that a\r\ntriable issue of material fact exists as to (1) whether the judgment in the\r\nunderlying action is void and (2) whether Plaintiff Harkham is entitled to\r\nequitable relief from the default judgment entered in the Underlying Action.

\r\n\r\n

\r\n\r\n

Accordingly, Defendant CAB’s Motion is GRANTED.

\r\n\r\n

\r\n\r\n

V. \r\nConclusion\r\n& Order

\r\n\r\n

\r\n\r\n

For the foregoing reasons, Defendant Creditors Adjustment Bureau, Inc.’s\r\nMotion for Summary Judgment is GRANTED. Defendant CAB is ordered to file a\r\nproposed judgment within ten (10) days of notice of this order.

\r\n\r\n

\r\n\r\n

Moving party is ordered to give\r\nnotice.

\r\n\r\n

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