On 10/18/2018 OAKTREE LAW, PROF CORP filed a Contract - Other Contract lawsuit against DARRYL LUCIEN. 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.
Pending - Other Pending
Los Angeles County Superior Courts
Spring Street Courthouse
Los Angeles, California
OAKTREE LAW PROF. CORP.
FIESELMAN LAWRENCE RICHARD
1/3/2020: Minute Order - Minute Order (Ruling on Submitted Matter)
1/3/2020: Certificate of Mailing for - Certificate of Mailing for (Ruling on Submitted Matter) of 01/03/2020
3/13/2020: Minute Order - Minute Order (Ex-Parte Proceedings To Continue Trial and Related Dates)
3/16/2020: Notice (name extension) - Notice of Continuance of Trial
11/4/2019: Reply (name extension) - Reply to Defendant's Supplemental Filing-1
11/6/2019: Motion to Set Aside/Vacate Default - Motion to Set Aside/Vacate Default
11/13/2019: Reply (name extension) - Reply Relief from default
11/19/2019: Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)
8/22/2019: Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)
8/15/2019: Answer - Answer
8/15/2019: Reply (name extension) - Reply Relief from default
8/9/2019: Opposition (name extension) - Opposition to Motion For Relief From Default
4/30/2019: Judgment - Judgment - Default Judgment By Court - Before Trial - 04/30/2019 entered for Plaintiff Oaktree Law, Prof. Corp. against Defendant Darryl Lucien.
1/30/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment
1/30/2019: Declaration (name extension) - Declaration Declaration of Larry Fieselman In Support of Request To Enter Default and Default Judgement
11/13/2018: Proof of Personal Service - Proof of Personal Service
10/18/2018: Summons - Summons on Complaint
10/18/2018: Complaint - Complaint
Hearing06/18/2021 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury TrialRead MoreRead Less
DocketNotice Re: Continuance of Hearing and Order; Filed by: ClerkRead MoreRead Less
DocketOn the Court's own motion, Non-Jury Trial scheduled for 09/21/2020 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Advanced and Continued - by Court was rescheduled to 06/18/2021 08:30 AMRead MoreRead Less
DocketEx-parte Ex-Parte Proceedings To Continue Trial and Related Dates scheduled for 03/13/2020 at 01:30 PM in Spring Street Courthouse at Department 26Read MoreRead Less
DocketPursuant to oral stipulation, Non-Jury Trial scheduled for 06/01/2020 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Advanced and Continued - by Court was rescheduled to 09/21/2020 08:30 AMRead MoreRead Less
DocketNotice of Continuance of Trial; Filed by: Oaktree Law, Prof. Corp. (Plaintiff); As to: Oaktree Law, Prof. Corp. (Plaintiff)Read MoreRead Less
DocketOn the Court's own motion, Non-Jury Trial scheduled for 03/17/2020 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Rescheduled by Court was rescheduled to 06/01/2020 08:30 AMRead MoreRead Less
DocketOpposition to Ex Parte Motion to Continue Trial; Filed by: Oaktree Law, Prof. Corp. (Plaintiff)Read MoreRead Less
DocketEx Parte Application to Continue Trial and related dates; Filed by: ClerkRead MoreRead Less
DocketMinute Order (Ex-Parte Proceedings To Continue Trial and Related Dates)Read MoreRead Less
DocketRequest for Entry of Default / Judgment; Filed by: Oaktree Law, Prof. Corp. (Plaintiff); As to: Darryl Lucien (Defendant)Read MoreRead Less
DocketDefault entered as to Darryl Lucien; On the Complaint filed by Oaktree Law, Prof. Corp. on 10/18/2018Read MoreRead Less
DocketProof of Personal Service; Filed by: Oaktree Law, Prof. Corp. (Plaintiff); As to: Darryl Lucien (Defendant)Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 10/21/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketNon-Jury Trial scheduled for 04/16/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk CourthouseRead MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketSummons on Complaint; Issued and Filed by: ClerkRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Oaktree Law, Prof. Corp. (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by: Oaktree Law, Prof. Corp. (Plaintiff); As to: Darryl Lucien (Defendant)Read MoreRead Less
Case Number: 18STLC12946 Hearing Date: November 19, 2019 Dept: 94
(CCP § 473(b))
Defendant Darryl Lucien’s Motion to Vacate Default and Default Judgment is GRANTED.
OPPOSITION: Filed on Aug. 9 and Nov. 4, 2019 [ ] Late [ ] None
REPLY: Filed on Aug. 15, Nov. 6, and Nov. 13 2019 [ ] Late [ ] None
Plaintiff Oaktree Law, PC (“Plaintiff”) filed the instant action for breach of contract against Defendant Darryl Lucien (“Defendant”) on October 18, 2018. Default was entered against Defendant on January 30, 2019, and default judgment entered on March 26, 2019. Defendant filed the instant Motion to Vacate Default and Default judgment on July 31, 2019. Plaintiff filed its opposition on August 9, 2019 and Defendant untimely replied on August 15, 2019.
At the last hearing, the Court made the following order:
“Without evidence that Plaintiff originally filed the motion papers on July 24, 2019, the Court cannot find that the motion was timely under the statute. To the extent Defendant contends he has evidence the motion was timely filed, the hearing on the Motion to Vacate Default and Default Judgment IS CONTINUED November 19, 2019 at 10:30 AM IN DEPT. 94. At least 16 court days before the hearing, Defendant is to file and serve supplemental papers addressing the timeliness of his request for relief. Failure to comply with the court’s orders may result in the Motion being placed off calendar or denied. Any opposition and reply papers are to be filed and served per the Code of Civil Procedure.”
(Case File, 8/22/19 Minute Order.)
On November 4, 2019, Plaintiff filed reply to Defendant’s supplemental filing. On November 6, 2019, Defendant re-filed the moving papers including the missing attachments. The Court considers this the supplemental papers. On November 13, 2019, Defendant untimely filed a reply to Plaintiff’s reply (aka opposition).
The motion is brought under the discretionary prong of Code of Civil Procedure, section 473, subdivision (b), which requires that 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 moving party’s mistake, inadvertence, surprise or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)
Six months after the entry of default on January 30, 2019 was July 30, 2019. The motion, therefore, was filed one day late and is untimely under Code of Civil Procedure section 473, subdivision (b).
“[A] court has no authority under section 473, subdivision (b), to excuse a party's noncompliance with the six-month time limit.”) (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 345.) Nor can the Court accept Defendant’s request to consider this a motion for mandatory relief under section 473, subdivision (b) based on a party’s attorney’s affidavit of fault. As Defendant is representing himself, he is in pro per and not represented by counsel.
However, “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (CCP § 473(d).) Additionally, every court has the power to amend and control its process and orders so as to make them conform to law and justice. (CCP § 128(a)(8).)
In his reply papers and the supplemental filing, Defendant contends that he tried to file the motion on July 24, 2019, but it was rejected by the Court with no explanation. (Lucien Supp. Decl., ¶4, Exh. 1.) Exhibit 1 is a confirmation from One Legal demonstrating that the Court received the motion papers on July 24, 2019. (Ibid.) Defendant also attaches the notice he received from One Legal indicating the filing was rejected on July 29, 2019. (Lucien Supp. Decl., ¶7, Exh. 2.) The message from the clerk states “Case can not be submitted as new complaint.” (Ibid.) However, when Defendant refiled the exact same documents on July 31, 2019, they were accepted. (Ibid.) This appears to be a clerical error by the Court. Thus, the Court deems the motion filed on July 24, 2019 pursuant to CCP §§ 473(d) and 128(a)(8). Accordingly, the motion is timely.
“To entitle [a party] to relief the acts which brought about the default must have been the acts of a reasonably prudent person under the same circumstances.” (Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58.) “‘Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’ [Citations.] [¶] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.’ [Citation.] An order denying a motion for relief under section 473 is therefore ‘‘scrutinized more carefully than an order permitting trial on the merits.’’ [Citation.]” (Murray & Murray v. Raissi Real Estate Development, LLC (2015) 233 Cal.App.4th 379, 385.)
Thus, very slight evidence is required, and the Court must liberally apply Section 473(b). Here, Defendant provides evidence that during the time the Summons and Complaint were served, he was frequently out of the office due to his father’s passing. (Lucient Decl., ¶2.) His father worked across the hall and he felt a sense of depression. (Ibid.) His receptionist placed the Summons and Complaint on the book case in his office and he did not see it until after default judgment had been obtained. (Ibid.) Given that Defendant did not see the Summons and Complaint due to his father’s passing, the Court finds that his surprise, inadvertence, and/or excusable neglect caused him to not respond to the Summons and Complaint and default to be entered. Granting relief from default to Defendant is, therefore, consistent with the strong policy of deciding cases on their merits.
“[T]he law ‘looks with [particular] disfavor on a party who, regardless of the merits of his cause, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.’ [Citation.]” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) This is exactly what Plaintiff is doing here opposing the motion twice based on the fact that Defendant’s filing was rejected clearly due to a clerical error.
III. Conclusion & Order
For the stated reasons, the Motion is GRANTED.
Trial is set for May 19, at 8:30 a.m. in Department 94. All discovery cut-off dates follow the new trial date.
Moving party is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.