On 02/26/2016 KEITH TROY filed a Personal Injury - Other Personal Injury lawsuit against G DE COHEN INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DEBRE K. WEINTRAUB. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
DEBRE K. WEINTRAUB
NATURAL IVY FOUNDATION INC.
G. DE COHEN INC.
DE COHEN GERALDINE
5/1/2018: PLAINTIFF'S NOTICE OF MOTION, AND MOTI0N TO VACATE VOID ORDER VACATING DEFAULTS AND DEFAULT JUDGMENTS OF DEFENDANTS GERALDINE DE COHEN AND G. DE COHEN, INC., PURSUANT TO CCP SECTION 473(D)
5/1/2018: PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO VACATE VOID ORDER VACATING DEFAULTS AND DEFAULT JUDGMENTS AGAINST G. DE COHEN, INC. AND GERALDINE DE COHEN
4/1/2016: PROOF OF SERVICE
4/1/2016: PROOF OF SERVICE - CIVIL
5/13/2016: PLAINTIFF KEITH TROY'S NOTICE OF RESCHEDULED CASE MANAGEMENT CONFERENCE.
6/1/2016: Proof of Service
9/12/2016: PROOF OF SERVICE OF SUMMONS
5/30/2017: Minute Order
6/14/2017: NOTICE OF RULING RE: PLAINTIFF'S APPLICATION FOR DEFAULT JUDGMENT BY COURT AGAINST ALL DEFENDANTS, PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1019.5(A)
8/4/2017: PROOF OF SERVICE--CIVIL
8/15/2017: MEMORANDUM OF COSTS AFTER JUDGMENT, ACKNOWLEDGMENT OF CREDIT, AND DECLARATION OF ACCRUED INTEREST
9/21/2017: Minute Order
10/2/2017: PLAINTIFF/JUDGMENT CREDITOR'S DECLARATION IN SUPPORT OF MOTION FOR ASSIGNMENT ORDER AGAINST DEFENDANTS/JUDGMENT DEBTORS G. DE COHEN, INC. AND GERALDINE DE COHEN
10/11/2017: NOTICE EX PARTE APPLICATION EX-PARTE APPLICATION FOR STAY OF EXECUTION OF JUDGMENT
10/11/2017: Minute Order
11/3/2017: PROPOSED ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT PURSUANT TO CCP SECTION 473(B)
11/17/2017: Minute Order
Appeal Record Delivered (2ND SUPPLEMENTAL); Filed by ClerkRead MoreRead Less
Appeal Document (2nd SUPPLEMENTAL CLERKS TRANSCRIPT); Filed by ClerkRead MoreRead Less
Appeal Record Delivered (SUPPLEMENTAL); Filed by ClerkRead MoreRead Less
Appeal - Augmented Clerk's Transcript 1 - 5 Volumes Certified; Filed by ClerkRead MoreRead Less
Appeal - Notice of Fees Due for Clerk's Transcript on Appeal (SUPPLEMENTAL); Filed by ClerkRead MoreRead Less
Appeal - Notice of Augmentation/Correction of Appeal Record (OMISSION - CLERK'S TRANSCRIPT;)Read MoreRead Less
Notice; Filed by ClerkRead MoreRead Less
Notice; Filed by ClerkRead MoreRead Less
NOTICE OF DEFAULT (UNLIMITED CIVIL APPEALS)Read MoreRead Less
NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEALRead MoreRead Less
Proof of Service (not Summons and Complaint); Filed by Keith Troy (Plaintiff)Read MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
NOTICE OF RELATED CASERead MoreRead Less
SUMMONSRead MoreRead Less
ORDER ON COURT FEE WAIVERRead MoreRead Less
Complaint; Filed by Keith Troy (Plaintiff)Read MoreRead Less
COMPLAINT FOR: 1. DECLARATORY RELIEF; ETCRead MoreRead Less
Notice of Related Case; Filed by Keith Troy (Plaintiff)Read MoreRead Less
Proof of Service by Mail; Filed by Keith Troy (Plaintiff)Read MoreRead Less
Case Number: BC612093 Hearing Date: July 28, 2020 Dept: 47
Keith Troy v. G. De Cohen, Inc., et al.
GIVEN THE RECENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES REMOTE APPEARENCES BY “LACourtConnect.” PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR REMOTELY AT WWW.LACOURT.ORG/LACC/. NO OTHER TYPES OF REMOTE APPEARANCES ARE AVAILABLE FOR THIS PARTICULAR COURTROOM, INCLUDING COURT CALL. IF YOU APPEAR IN PERSON AT THE HEARING, YOU WILL BE SUBJECT TO ALL SOCIAL DISTANCING RULES, INCLUDING THE WEARING OF AN APPROPRIATE FACE MASK/COVERING (ABSENT ANY EXCEPTIONAL CIRCUMSTANCES) AS CONTAINED IN THE APPLICABLE GENERAL ORDERS ISSUED BY THE PRESIDING JUDGE OF THE L.A.S.C.
(1) MOTION TO SET ASIDE DEFAULT;
(2) MOTION FOR AN ASSIGNMENT ORDER
MOVING PARTY: (1) Defendants G. De Cohen, Inc. and Geraldine De Cohen; (2) Plaintiff Keith Troy
RESPONDING PARTY(S): (1) Plaintiff Keith Troy; (2) No opposition on eCourt as of July 23, 2020 (and Defendants are in default).
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiff alleged that the Defendants, his landlords and rental agents, “chose greed, bedevilment and retaliation over their professional obligations and contractual agreements.” He alleged 21 causes of action in his 140-page, 822-paragraph complaint, including intentional and negligent infliction of emotional distress, intentional and negligent misrepresentation, private nuisance, breach of contract and the covenants of quiet enjoyment and good faith and fair dealing, illegal entry, forcible entry and detainer, constructive and retaliatory eviction, and more. He alleged that Defendants rented him his unit while claiming he was not a tenant, to avoid having to comply with rent control and other obligations. He obtained default judgment against all defendants in May 2017. This was ultimately set aside, but the order setting aside the default judgments was then reversed.
Defendants G. De Cohen, Inc. and Geraldine De Cohen again move to set aside the defaults against them. Plaintiff Keith Troy moves for an assignment order.
Defendants G. De Cohen, Inc. and Geraldine De Cohen’s motion to set aside default and default judgment is GRANTED. Defendants are to file a standalone copy of their answer on the date of this order.
Plaintiff’s motion for an assignment order is DENIED AS MOOT.
This matter is set for trial on November 15, 2021 at 9:30 a.m. Final Status Conference is set for November 9, 2021 at 9:30 a.m. The parties are to comply with this Court’s Trial Preparation Order. [Go to www.lacourt.org. » Divisions. » Civil. » Courtroom Information. » Stanley Mosk Courthouse » Department 47.]
Motion To Set Aside Default
Defendants G. De Cohen, Inc. and Geraldine De Cohen move to set aside the defaults entered against them in September 2016 and the default judgment entered against them on May 30, 2017. This motion is beyond the jurisdictional time limits of CCP § 473(b) and CCP § 473.5, and therefore Defendants move to set aside the defaults pursuant to the Court’s “inherent equitable powers,” on the ground of extrinsic mistake.
Defaults were entered against these parties on September 12, 2016 (as to Defendant G. de Cohen, Inc.) and September 27, 2016 (as to Geraldine de Cohen). Then, on May 30, 2017, default judgment was entered as to both moving Defendants and others. In September 2017, less than six months after the default judgment was entered, but approximately a year after the defaults were entered, Defendants moved to set aside the “default and default judgment entered in this action on May 7, 2017” under the discretionary provision of CCP § 473(b). On November 3, 2017, this Court granted Defendants’ motion, and Plaintiff appealed. Plaintiff also moved to vacate the order setting aside the default judgment while the appeal was pending, and this Court denied that motion on July 19, 2018, because the appeal was already pending. It was in that context that the Court struck proposed language that Defendants sought to include in the proposed order on Plaintiff’s motion, which would have added findings regarding the propriety of granting their motion on a different ground than what it had been granted on: the Court’s inherent equitable power. Plaintiff then appealed the July 19, 2018 order, and Plaintiff’s two appeals were consolidated.
On December 16, 2019, the Court of Appeal reversed the order setting aside the default judgment. The Court of Appeal held that this Court erred in granting the motion under CCP § 473(b) because the six-month period for purposes of the discretionary provision of CCP § 473(b) runs from the entry of default, not the entry of default judgment. (Appellate Decision, 12/16/19, at p. 2.) The motion was timely as to the default judgment but setting aside the default judgment while the entry of default was still valid would be an “idle act.” (Ibid.)
On appeal, Defendants argued that the order should be upheld because it could have been issued under either CCP § 473.5(A) or the Court’s equitable discretion. As to CCP § 437.5, the Court of Appeal rejected Defendants’ argument, because their own evidence showed that they had actual evidence in time to respond; they did not do so because they relied on bad advice. (Appellate Decision, at p. 10.) As to the Court’s equitable discretion, the Court of Appeal noted that the Court “found that De Cohen made a mistake but rejected defendants’ proposed findings relevant to a finding of exceptional circumstances.” (Id. at p. 11.) Importantly, however, Defendants “did not mention section 437.5 or the court’s inherent equitable discretion as bases to set aside the default and default judgment” in their motion to set aside the default and default judgment. (Id. at p. 5, bold emphasis added.) They raised this argument only after Plaintiff challenged the timeliness of their original motion, when opposed Plaintiff’s motion to vacate the set aside order and included language regarding the Court’s equitable discretion in their proposed order on that motion. (Ibid.) In any case, the Court “did not rely upon its broad equitable powers to set aside the default and default judgment.” (Id. at p. 11.)
The Court of Appeal reversed the order to set aside and therefore denied Plaintiff’s appeal of the order denying his motion to vacate as moot. (Ibid.) As noted above, however, the Court’s crossing out of the language regarding equitable discretion happened only in the context of the order denying Plaintiff’s motion to vacate; that basis had not been mentioned in the original motion. Defendants filed this motion on January 7, 2020, and the remittitur was filed on February 21, 2020.
Apart from any statutory authority, a court has inherent, equitable power to set aside a judgment on the ground of extrinsic fraud or mistake. (Olivera v. Grace (1942) 19 Cal.2d 570, 576-578; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300; Bae v. T.D. Service Co. (2016) 245 Cal.App.4th 89, 97.) However, relief on the ground of extrinsic fraud or mistake is not available to a party who has been given notice of the action yet fails to appear, unless he or she was prevented from participating in the action. (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472; Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 502; Yolo County Dept. of Child Support Services v. Myers (2016) 248 Cal.App.4th 42, 49.)
To obtain this type of relief, the party in default must show (1) a meritorious defense, (2) a satisfactory excuse for not presenting this defense to the original action, and (3) diligence in seeking to set aside the default once it was discovered. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982; Sporn, supra, 126 Cal.App.4th at 1301.)
A default judgment will not be set aside unless it is likely that the result would be different if the case went to trial. Therefore, the party seeking to set aside the judgment must show that the party has a meritorious defense. (Smith v. Busniewski (1952) 115 Cal.App.2d 124, 129-130.) The moving party should make this showing by way of a proposed answer showing a valid defense and declarations showing facts supporting that defense. (Shields v. Siegel (1966) 246 Cal.App.2d 334, 337.)
Here, the answer Defendants filed after the default judgment was set aside contained a general denial and affirmative defenses that (1) the complaint fails to state facts sufficient to constitute a cause of action against these Defendants; (2) Plaintiff failed to mitigate damages; (3) the complaint is barred by waiver; (4) the complaint is barred by equitable estoppel; and (5) the complaint is barred by the applicable statute of limitations. Defendants have not made any specific showings as to their affirmative defenses, but they do deny that the complaint has merit against them.
In her declaration, Defendant Geraldine De Cohen explains that her business, Defendant G. De Cohen, Inc., works with social service agencies and non-profits to “provide shelter, care and supervision to developmentally disabled people.” (Declaration of Geraldine De Cohen ¶ 3.) She is paid by these agencies and non-profits, not directly by boarders. (Ibid.) In Plaintiff’s case, the Natural Ivy Foundation “was responsible for paying for Mr. Troy’s shelter.” (Id. ¶ 4.) Defendants did not “have an agreement with him for the placement/shelter.” (Ibid.) Natural Ivy Foundation terminated his placement, and Plaintiff and Natural Ivy Foundation “addressed how and when he left the premises.” (Ibid.) Defendants had “no contractual arrangement with Mr. Troy.” (Ibid.)
Pernetha Smith, one of the owners and managers of Natural Ivy Foundation, also declares that “Mr. Troy did not have any contractual relationship with Ms. DeCohen or her business nor did he have any business relationship with her.” (Declaration of Pernetha Smith ¶ 3.) He did not pay De Cohen any money, and Natural Ivy terminated his placement at De Cohen’s facility. (Ibid.)
These facts demonstrate that Defendants are likely to have a meritorious defense. Plaintiff alleges that they breached a contract with him; it is at least as likely, based on Defendants’ declaratory evidence, that Defendants had no contract themselves with Plaintiff. Even in the context of Plaintiff’s intentional infliction of emotional distress, he alleges that these Defendants “were the spearhead of the course of conduct complained of herein” (Complaint ¶ 334), whereas Defendants have declared that National Ivy Foundation made the relevant decisions. Likewise, Plaintiff’s causes of action for promissory fraud, fraud in the concealment, intentional fraud, and negligent misrepresentation could not succeed against these Defendants if Plaintiff’s relevant dealings were with Natural Ivy Foundation.
Accordingly, for purposes of this motion, Defendants have shown a meritorious defense.
Generally, when relying on the Court’s equitable power, a defendant must show that the default was the result of extrinsic fraud or mistake. (Sporn, supra, 126 Cal.App.4th at 1300.) The concepts of “extrinsic fraud or mistake” are interpreted broadly to encompass almost any circumstance by which a party has been deprived of a fair hearing. There need be no actual “fraud” or “mistake” in the strict sense – these concepts can include papers being “lost, stolen, forwarded to the wrong person, or eaten by the dog.” (Sporn, supra, 126 Cal.App.4th at 1300.)
Thus, the concept of “extrinsic mistake” is broadly applied to situations in which circumstances extrinsic to the litigation have denied a party the opportunity to be heard. (Rappleyea, supra, 8 Cal.4th at 981.) These are usually cases of excusable neglect by defendant or defendant's attorney in failing to appear and present a defense: “If such neglect results in an unjust judgment, without a fair adversary hearing, the basis for equitable relief is present, and is often called ‘extrinsic mistake.’” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471; Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 47.) For example, if a defendant reasonably relies on another individual or entity to defend the action, but the other individual or entity fails to do so through unforeseen circumstances constituting excusable neglect, extrinsic mistake may be found. (Weitz v. Yankosky (1966) 63 Cal.2d 849, 855-856 [papers sent to the defendant’s insurance carrier lost in the mail, so no answer was ever filed on the defendant’s behalf]; Orange Empire Nat'l Bank v. Kirk (1968) 259 Cal.App.2d 347, 352-353 [defendant’s lawyer failed to keep his promise to file an answer on defendant’s behalf].)
Here, Defendants have shown, by way of declarations of competent witnesses based on personal knowledge, that their failure to answer was due to extrinsic mistake. Geraldine De Cohen declares that representatives from the Natural Ivy Foundation told her that she “did not need to worry about this matter.” (De Cohen Decl. ¶ 6.) They also put her in touch with a lawyer, who told her that she had not been served properly and therefore “shouldn’t worry or do anything.” (Ibid.) She was also “advised around July 2016 by Pernetha Smith . . . that Natural Ivy Foundation would take care of the lawsuit for me and that I didn’t need to do anything because I had nothing to do with Mr. Troy or his placement at my facility.” (Id. ¶ 7.) Pernetha Smith likewise declares that, “around 2016,” she “met with Ms. DeCohen and advised her that she didn’t need to do anything about the lawsuit because [Ms. Smith] and the Natural Ivy Foundation would take care of everything for her and her business.” (Smith Decl. ¶ 5.)
Plaintiff argues that Defendants have not shown a satisfactory excuse because the facts they set forth regarding the lawyer’s advice about proper service renders their mistake intrinsic, rather than extrinsic. That ignores, however, the more general mistake that Defendants made in relying on Natural Ivy Foundation to “take care of everything.” Defendants’ mistake may have been partly intrinsic, but they also present evidence of extrinsic mistake. Plaintiff questions the veracity of this evidence because Defendants did not present it earlier, but Defendants did not need to (and did not) argue extrinsic mistake in order to invoke the Court’s equitable powers when they originally filed their motion to set aside. Defendants did raise these points once Plaintiff questioned the timeliness of their motion under CCP § 473(b), but that only signifies that Defendants had other bases on which they could have moved originally.
Accordingly, the Court finds that Defendants had a satisfactory excuse for failing to defend themselves.
The statutory time limits on relief under CCP § 473(b) or § 473.5 do not apply to a motion based on the Court’s equitable powers. The court may be asked to grant equitable relief from a default judgment whenever the “extrinsic fraud or mistake” is discovered. But once discovered, a party is expected to proceed diligently to seek relief. This requirement is “inextricably intertwined with prejudice” to the plaintiff. (Rappleyea, supra, 8 Cal.4th at 983-984; Lee v. An (2008) 168 Cal.App.4th 558, 566.) Beyond the six-month period in which relief can be obtained under CCP § 473(b), “there is a strong public policy in favor of the finality of judgments and only in exceptional cases should relief be granted.” (Rappleyea, supra, 8 Cal.4th at 982.) Thus, relief may be denied if it is shown that the moving party has been guilty of unreasonable delay in seeking relief, causing prejudice to the opposing party. (McCreadie v. Arques (1967) 248 Cal.App.2d 39, 46-47 [plaintiff would be prejudiced by having to prove matters 5 years old if judgment set aside].) “The greater the prejudice to the responding party, the more likely it is that the court will determine that equitable defenses such as laches or estoppel apply to the request to vacate a valid judgment.” (Rappleyea, supra, 8 Cal.4th at 983.)
Here, Defendants have shown that they were diligent in seeking relief once they discovered the extrinsic mistake. Defendants filed their original motion to set aside the default and default judgment on September 29, 2017. Defendants indicate that they found out about the defaults and default judgment “just a few weeks” before filing the motion to set aside. (De Cohen Decl. ¶ 7.) It appears that Defendants had been served with notice of the default judgment on June 14, 2017; even if that notice was presumably received, however, filing the motion in September 2017 indicates sufficient diligence.
Accordingly, Defendants have shown that they were diligent in seeking relief once they discovered their extrinsic mistake.
Law of the Case
Plaintiff argues that the Court of Appeal decision herein is law of the case establishing that Defendants cannot obtain their requested relief. The Court of Appeal did not, however, determine that this Court had found that it would not be appropriate to set aside the defaults and default judgment based on its equitable discretion. As discussed above, Defendants had not raised that basis to set aside the defaults and default judgment in their original motion. It stands to reason, then, that the Court would strike out any language purporting to show that it had relied on that basis, when the Court was in fact reiterating that the motion to set aside was properly granted under CCP § 473(b). The Court of Appeal indicates only that this Court did not rely on its equitable powers – not that relying on those equitable powers would be improper. (Appellate Decision, at p. 11.)
Although this does not affect the substantive merits of the motion or the merits of Plaintiff’s law of the case argument, the Court must address Defendants’ incorrect interpretation of Appellate Rule 8.1115(b). That rule does indeed state that unpublished opinions of the Court of Appeal “may be cited or relied on: (1) when the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel.” (CRC 8.1115(b), bold emphasis added.) Defendants interpret this rule to mean that they may cite an unpublished decision unrelated to this case to support their argument “because Plaintiff has asserted the doctrine of law of the case.” (Defendants’ Reply, at p. 3 n.1.) This is an amusing but incorrect interpretation. This rule allows parties to cite an unpublished decision that itself is potentially law of the case at issue or that potentially has collateral estoppel or res judicata effect in the case at issue. The Court of Appeal decision in this case is an example of an unpublished decision that can be cited herein because it could potentially be law of the case (though Plaintiff’s argument was ultimately unsuccessful). It would be interesting to hear the rationale by which arguments involving law of the case, res judicata, or collateral estoppel were considered so unique, as opposed to other legal topics, that all unpublished decisions were considered fair game.
Motion for Reconsideration
Plaintiff also argues that Defendants’ motion amounts to an untimely motion for reconsideration. As Defendants note, however, they are not asking the Court to reconsider an order; the previous order, which was reversed, had granted their motion.
For the reasons discussed above, Defendants’ motion to set aside the defaults and default judgment against them is GRANTED. Defendants are to file a standalone copy of their answer on the date of this order.
Motion for Assignment Order
Because the Court has set aside the defaults and default judgment entered against these Defendants, Plaintiff’s motion for an assignment order is DENIED AS MOOT.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated: July 28, 2020 ___________________________________
Randolph M. Hammock
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
 As the Court of Appeal noted, it is unclear why the default judgment was not entered until May 30, 2017, as it was served on Defendants on May 8. (Appellate Decision, at p. 4 n.2.)