On 07/13/2016 FANOR MASSOLAS filed a Property - Other Real Property lawsuit against BYRON L BOBBITT. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
BOBBITT BYRON L.
DOES 1 TO 10
ONWAEZE LAW GROUP APC
ONWAEZE OGOCHUKWU VICTOR
2/28/2018: Minute Order
7/25/2018: NOTICE OF CASE MANAGEMENT CONFERENCE ORDER
1/25/2019: Minute Order
7/13/2016: COMPLAINT FOR 1. BREACH OF CONTRACT; ETC
10/11/2016: NOTICE OF DEMURRER AND DEMURRER OF CROSS DEFENDANTS TO THE COMPLAINT, DECLARATION OF OGOCHUKWU VICTOR ONWAEZE
10/31/2016: CIVIL DEPOSIT
11/3/2016: Minute Order
11/18/2016: Minute Order
2/22/2017: Minute Order
8/10/2017: Minute Order
9/5/2017: NOTICE OF MOTION AND MOTION TO BE RELIEVED AS COUNSEL?CIVIL
9/5/2017: DECLARATION IN SUPPORT OF ATTORNEY' MOTION TO BE RELIEVED AS COUNSEL-CIVIL
9/6/2017: DECLARATION IN SUPPORT OF ATTORNEY'S MOTION TO BE RELIEVED AS COUNSEL?CIVIL
9/29/2017: Minute Order
9/29/2017: ORDER GRANTING ATTORNEY'S MOTION TO BE RELIEVED AS COUNSEL-CIVIL
at 08:30 AM in Department 24; Order to Show Cause Re: (Default and Default Judgment) - Held - ContinuedRead MoreRead Less
Minute Order ( (Order to Show Cause Re: Default and Default Judgment)); Filed by ClerkRead MoreRead Less
Notice (OF CONTINUANCE OF ORDER TO SHOW CAUSE RE DEFAULT JUDGMENT); Filed by Fanor Massolas (Plaintiff); Ramone Bray (Plaintiff)Read MoreRead Less
Request for Entry of Default / Judgment; Filed by Fanor Massolas (Plaintiff); Ramone Bray (Plaintiff)Read MoreRead Less
at 10:00 AM in Department 24; Jury Trial - Not Held - Advanced and VacatedRead MoreRead Less
at 09:30 AM in Department 24; Final Status Conference - Not Held - Advanced and VacatedRead MoreRead Less
at 08:30 AM in Department 24; Order to Show Cause Re: (Default Judgment) - Held - ContinuedRead MoreRead Less
Minute Order ( (Order to Show Cause Re: Default Judgment)); Filed by ClerkRead MoreRead Less
at 08:30 AM in Department 24; Order to Show Cause Re: (Default Judgment) - Not Held - Continued - Court's MotionRead MoreRead Less
Notice Re: Continuance of Hearing and Order; Filed by ClerkRead MoreRead Less
ORDER ON COURT FEE WAIVERRead MoreRead Less
CROSS-COMPLAINTRead MoreRead Less
Cross-Complaint; Filed by Cross-ComplainantRead MoreRead Less
ANSWER TO UNVERIFIED DOMPLAINTRead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
SUMMONSRead MoreRead Less
COMPLAINT FOR 1. BREACH OF CONTRACT; ETCRead MoreRead Less
Complaint; Filed by Fanor Massolas (Plaintiff); Ramone Bray (Plaintiff)Read MoreRead Less
Case Number: BC626864 Hearing Date: January 28, 2020 Dept: 24
Defendant Byron Bobbitt’s motion to set aside default is DENIED.
On July 13, 2016, Plaintiffs Fanor Massolas and Ramone Bray filed this habitability action against Defendant Byron Bobbitt alleging the following twelve causes of action: (1) Breach Of The Covenant Of Quiet Enjoyment; (2) Violation Of L.A. Municipal Code, §151.04; (3) Violation Of L.A. Municipal Code, §151.05; (4) Violation Of L.A. Municipal Code, §151 .09; (5) Violation Of Civil Code, §1942.4; (6) Breach Of Contract; (7) Breach Of Implied Warranty Of Habitability; (8) Nuisance; (9) Negligence; (10) Violation of Civ. Code § 789, et seq.; (11) IIED; and (12) Constructive Eviction.
As of April 15, 2018, Bobbitt was self-represented. The Court struck Bobbitt’s answer after his failure to appear on October 25, 2018. On April 25, 2019, the Court entered default against Defendant.
On October 2, 2019, Defendant appeared and filed a motion to set aside/vacate the entry of default. On October 3, 2019, Plaintiffs’ default judgment came to hearing with a tentative to grant default judgment. However, the Court became aware of the pending motion to set aside, and thus continued the default judgment hearing. On December 13, 2019, Plaintiff filed an opposition. On January 21, 2020, Defendant filed a reply.
Relief under section 473(b) is either discretionary or mandatory. Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) A motion for discretionary relief must be made “within a reasonable time but in no instance exceeding six months after the judgment, dismissal, order, or proceeding was taken.” (Id.) If discretionary relief is granted, the court may in its discretion order the moving party to pay the costs, including attorney fees, incurred in obtaining the default. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823; Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 118-119.) If the motion for discretionary relief is granted, the court may order the offending attorney to pay monetary sanctions up to $1,000 to opposing parties, or up to $1,000 to the State Bar Client Security Fund, or “[g]rant other relief as is appropriate.” (CCP § 473(c)(1)(A), (B), (C).)
A motion for relief under section 473(b) “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted. . .” (CCP § 473(b).) However, this requirement is not jurisdictional; substantial compliance may suffice. (Carmel, Ltd. v. Tavoussi hearing rather than serving it with moving papers].)
Plaintiff objects to the initial filing by Defendant’s counsel Kahlil McAlpin. While true that McAlpin did not file a substitution of attorney, the Court does not find this sufficient grounds to deny the motion for relief. Plaintiff provides no authority that this would be grounds to deny this motion.
Turning to the merits, Defendant moves for discretionary relief. Defendant’s answer was stricken on October 28, 2018 when he failed to appear for the OSC re: Sanctions. Default was entered on April 25, 2019. Defendant does not contend that he did not have notice of the October 28 hearing which led to his default but states he had recently hospitalized from October 5 through 8, after which he was ordered to rest at home. (Supp. Bobbitt Decl., ¶ 3, Ex. A.) Defendant also notes that he was dealing with multiple other legal disputes regarding his mother’s passing and child custody. (Supp. Bobbitt Decl., ¶ 2.) He claims he was emotionally overwhelmed during 2019 due to the number of legal proceedings in which he was involved. (Supp. Bobbitt Decl., ¶ 4.)
The Court does not find that the above establishes a sufficient excuse for Defendant’s failure to appear at the underlying hearings or diligently cure his default. In fairness, his supplemental declaration presents a far more compelling case than his initial declaration. While the Court is sympathetic to his circumstances, Defendant has not explained why he was unable to appear on October 25, 2018, or at least notify the Court regarding his absence. The records indicate that Defendant had notice of the hearing. (Onwaeze Decl., Exs. 11, 12.) Defendant only explains that he was hospitalized a few weeks before the hearing, but does not explain how this prevented him from appearing in person or via phone, or requesting a continuance.
The Court must note that while the instant motion is timely as to the default, as it was made within 6 months of default. Defendant made the instant motion a little over five months after default. However, Defendant has not shown diligence. Defendant has not explained his efforts to cure the default between the default and the instant motion. Defendant does not explain when he became aware of the default. He only vaguely notes that he was “never served with notice of the results of the hearing in October, and [he] did not see the minute order until recently” without indicating when he discovered the sanctions or default. (Supp. Bobbitt Decl., ¶ 4.) The records indicate that he was mailed notice of the request for entry of default on April 22, 2019. (See 4/25/19 Request for Entry of Default ¶ 6 [declaration of mailing].) Thus, the Court cannot state that he acted diligently when attempting to cure the default. Moreover, Defendant does not explain his diligence to cure the Court striking his answer for six months prior to the entry of default. Taking both of these periods together, Defendant did not make any appearance in this suit for over a year, despite numerous notices.
As such, the Court is not inclined to grant relief. Absent more specific facts regarding Defendant’s diligence and excuse, Defendant’s motion is DENIED.