On 10/24/2018 MONROE JACQUES DE ROTHSCHILD filed a Contract - Other Contract lawsuit against RICHARD DISISTO. 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.
*******3144
10/24/2018
Pending - Other Pending
Los Angeles County Superior Courts
Spring Street Courthouse
Los Angeles, California
WENDY CHANG
DE ROTHSCHILD MONROE JACQUES
DISISTO RICHARD
SAYAH DANIEL
ENGLISH GARY CONSTRUCTION
CAMPBELL THOMAS
TRIEBOLD MARK JOHN
BOVENIZER ERNEST
CROWLEY JEREMIAH MICHAEL
ENGLISH; GARY
MAHN JOHN EDWARD
CA WEST COAST PLUMBING
REGEV DORON
SAYAH ENGINEERING INC.
SMART RISE ELEVATOR SERVICE INC.
SMALL BRIAN
HEATING AND AIR INC.
ABE SHARABI AVINOAM
COTTON DAVID LYNCH
PEE BEE INVESTMENTS
HILLSIDE CONSTRUCTION RIDGE INC.
OPDAHL NEIL E
503 Wildrose Ave
Monrovia, CA 91016
BREMER KEITH G
SLADE LAWRENCE P
1/13/2021: Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Default (CCP 473.5))
9/3/2020: Minute Order - Minute Order (Court Order)
9/15/2020: Answer - Answer
9/17/2020: Notice (name extension) - Notice of Errata
5/26/2020: Request for Dismissal - Request for Dismissal
3/27/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order
3/23/2020: Proof of Service by Substituted Service - Proof of Service by Substituted Service
3/23/2020: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment
2/6/2020: Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment
2/7/2020: Proof of Personal Service - Proof of Personal Service
2/7/2020: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment
2/7/2020: Proof of Personal Service - Proof of Personal Service
12/9/2019: Request for Dismissal - Request for Dismissal
6/20/2019: Request for Dismissal - Request for Dismissal
4/15/2019: Summons - Summons on 1st Amended Complaint
10/24/2018: Civil Case Cover Sheet - Civil Case Cover Sheet
10/24/2018: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case
Hearing10/27/2021 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
Hearing05/26/2021 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial
DocketUpdated -- Motion to Set Aside/Vacate Default: Filed By: Richard Disisto (Defendant); Result: Denied; Result Date: 01/13/2021
DocketMinute Order (Hearing on Motion to Set Aside/Vacate Default (CCP 473.5))
DocketHearing on Motion to Set Aside/Vacate Default (CCP 473.5) scheduled for 01/13/2021 at 09:00 AM in Spring Street Courthouse at Department 26 updated: Result Date to 01/13/2021; Result Type to Held - Motion Denied
DocketNotice of Errata; Filed by: Richard Disisto (Defendant)
DocketAnswer; Filed by: Richard Disisto (Defendant); As to: Monroe Jacques de Rothschild (Plaintiff)
DocketMotion to Set Aside/Vacate Default; Filed by: Richard Disisto (Defendant)
DocketHearing on Motion to Set Aside/Vacate Default (CCP 473.5) scheduled for 01/13/2021 at 09:00 AM in Spring Street Courthouse at Department 26
DocketMinute Order (Court Order)
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 10/27/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94
DocketUpdated -- Amended Complaint (1st): Status Date changed from 01/29/2019 to 10/24/2018
DocketNon-Jury Trial scheduled for 04/22/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94
DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk Courthouse
DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk
DocketSummons on Complaint; Issued and Filed by: Clerk
DocketCivil Case Cover Sheet; Filed by: Monroe Jacques de Rothschild (Plaintiff)
DocketOrder on Court Fee Waiver (Superior Court); Signed and Filed by: Clerk; As to: Monroe Jacques de Rothschild (Plaintiff)
DocketRequest to Waive Court Fees; Filed by: Monroe Jacques de Rothschild (Plaintiff)
DocketComplaint; Filed by: Monroe Jacques de Rothschild (Plaintiff); As to: Richard Disisto (Defendant); Thomas Campbell (Defendant); Daniel Sayah (Defendant) et al.
Case Number: 18STLC13144 Hearing Date: January 13, 2021 Dept: 26
Rothschild v. Disisto, et al.
MOTION TO VACATE ENTRY OF DEFAULT
(CCP § 473(b))
TENTATIVE RULING:
Defendant Richard Disisto’s Motion to Vacate Entry of Default is DENIED.
ANALYSIS:
Plaintiff Monroe Jacques De Rothschild (“Plaintiff”) filed the instant action for fraud, recission and related claims arising out of a construction agreement against Defendant Richard Disisto (“Defendant Disisto”) and others on October 24, 2018. The Complaint was not served. Plaintiff filed a First Amended Complaint on January 29, 2019. On February 7, 2020, Plaintiff filed Proof of Service by Substitute Service with respect to Defendant Disisto. Following Defendant Disisto’s failure to file a responsive pleading, the Court entered his default on March 23, 2020.
Defendant Disisto filed the instant Motion to Vacate Entry of Default on September 15, 2020. To date, no opposition has been filed to the Motion.
Discussion
Defendant Disisto seeks relief from the default entered on March 23, 2020 pursuant to Code of Civil Procedure, section 473, subdivision (b). Under this statute, an application for relief 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 instant Motion is brought pursuant to the discretionary relief prong of section 473, subdivision (b) for Defendant Disisto’s own mistake, inadvertence, surprise or neglect. A motion for relief based on party mistake, inadvertence, surprise or neglect must not only must be brought within six months after entry of the order from which relief is sought, but also within a reasonable time. (Code Civ. Proc., § 473, subd. (b).)
Defendant Disisto has not shown that the Motion is timely. The Motion was filed on September 15, 2020, almost six months after the March 23, 2020 entry of default. Defendant Disisto admits to learning of this action in April 2020, but does not explain why the Motion was not filed until five months later. (Motion, Disisto Decl., ¶¶2-7.)
The Court also finds the declaration does not adequately explain why Defendant Disisto was unaware of this action. According to the proof of service filed on February 7, 2020, the First Amended Complaint was served on Defendant Disisto by leaving the papers at a private mailbox office with the person apparently in charge and then mailing the papers there. (Proof of Service, filed 2/7/20, ¶¶4-5.) The request for entry of default was mailed to the same address and presumably received by Defendant Disisto. (Request for Entry of Default, filed 3/23/20, ¶6b.) The Motion does not argue that the service address was improper or raise any other challenge to the propriety of service. The papers were left at the mailbox on January 21, 2020 and mailed there on the same date. (Proof of Service, filed 2/7/20, ¶5.) If the party’s failure to respond to the action is the result of inexcusable neglect, relief is not available under Code of Civil Procedure section 473, subdivision (b). (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438 (citing Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027, 1033).) Defendant’s declaration does not demonstrate that his lack of notice was not the result of his inexcusable neglect.
Based on the foregoing, the Court finds Defendant Disisto has not demonstrated that the factors for relief under Code of Civil Procedure section 473, subdivision (b) are satisfied.
Conclusion
Defendant Richard Disisto’s Motion to Vacate Entry of Default is DENIED.
Plaintiff to give notice.
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