This case was last updated from Los Angeles County Superior Courts on 11/04/2021 at 08:44:04 (UTC).

BENJAMIN CASPI, ET AL. VS HECTOR CANO

Case Summary

On 05/10/2021 BENJAMIN CASPI filed a Property - Other Real Property lawsuit against HECTOR CANO. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judge overseeing this case is VIRGINIA KEENY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0637

  • Filing Date:

    05/10/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

VIRGINIA KEENY

 

Party Details

Plaintiffs

CASPI ANNA

CASPI BENJAMIN

Defendant

CANO HECTOR

Attorney/Law Firm Details

Plaintiff Attorney

ORJIAKOR IKE ERIC

Defendant Attorney

BAYLEY GUY RICHARD

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON MOTION TO SET ASIDE/VACATE DEFAULT AND DEFAULT JUD...)

10/28/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO SET ASIDE/VACATE DEFAULT AND DEFAULT JUD...)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO SET ASIDE/VACATE DEFAULT AND DEFAULT JUD...) OF 10/28/2021

10/28/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO SET ASIDE/VACATE DEFAULT AND DEFAULT JUD...) OF 10/28/2021

Motion to Set Aside/Vacate Default and / or Default Judgment

9/24/2021: Motion to Set Aside/Vacate Default and / or Default Judgment

Proof of Service by Mail

9/24/2021: Proof of Service by Mail

Case Management Statement

9/24/2021: Case Management Statement

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

10/4/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Proof of Service (not Summons and Complaint)

10/21/2021: Proof of Service (not Summons and Complaint)

Amended Complaint - AMENDED COMPLAINT (1ST)

10/21/2021: Amended Complaint - AMENDED COMPLAINT (1ST)

Proof of Service (not Summons and Complaint)

10/21/2021: Proof of Service (not Summons and Complaint)

Opposition - OPPOSITION NOTICE OF OPPOSITION AND OPPOSITION TO DEFENDANTS DEMURRER TO COMPLAINT MPA

9/23/2021: Opposition - OPPOSITION NOTICE OF OPPOSITION AND OPPOSITION TO DEFENDANTS DEMURRER TO COMPLAINT MPA

Declaration - DECLARATION DECLARATION OF IKE ORJIAKOR IN SUPPORT OF PLAINTIFFS OPPOSITIONS TO DEFENDANTS DEMURRER AND MOTION TO STRIKE

9/23/2021: Declaration - DECLARATION DECLARATION OF IKE ORJIAKOR IN SUPPORT OF PLAINTIFFS OPPOSITIONS TO DEFENDANTS DEMURRER AND MOTION TO STRIKE

Opposition - OPPOSITION NOTICE OF OPPOSITION AND OPPOSITION TO DEFENDANTS MOTION TO STRIKE MPA

9/23/2021: Opposition - OPPOSITION NOTICE OF OPPOSITION AND OPPOSITION TO DEFENDANTS MOTION TO STRIKE MPA

Proof of Service (not Summons and Complaint)

9/23/2021: Proof of Service (not Summons and Complaint)

Notice Re: Continuance of Hearing and Order

9/14/2021: Notice Re: Continuance of Hearing and Order

Substitution of Attorney

9/7/2021: Substitution of Attorney

Motion to Strike (not initial pleading)

8/20/2021: Motion to Strike (not initial pleading)

Demurrer - with Motion to Strike (CCP 430.10)

8/20/2021: Demurrer - with Motion to Strike (CCP 430.10)

Proof of Service (not Summons and Complaint)

8/20/2021: Proof of Service (not Summons and Complaint)

25 More Documents Available

 

Docket Entries

  • 12/29/2021
  • Hearing12/29/2021 at 08:30 AM in Department W at 6230 Sylmar Ave., Van Nuys, CA 91401; Order to Show Cause Re: Sanctions against attorney Ike Eric Orjiakor

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  • 12/29/2021
  • Hearing12/29/2021 at 08:30 AM in Department W at 6230 Sylmar Ave., Van Nuys, CA 91401; Case Management Conference

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  • 10/28/2021
  • Docketat 08:30 AM in Department W, Virginia Keeny, Presiding; Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) - Held

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  • 10/28/2021
  • Docketat 08:30 AM in Department W, Virginia Keeny, Presiding; Case Management Conference - Held - Continued

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  • 10/28/2021
  • DocketMinute Order ( (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)); Filed by Clerk

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  • 10/28/2021
  • DocketCertificate of Mailing for ((Hearing on Motion to Set Aside/Vacate Default and Default Jud...) of 10/28/2021); Filed by Clerk

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  • 10/21/2021
  • DocketProof of Service (not Summons and Complaint); Filed by Benjamin Caspi (Plaintiff)

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  • 10/21/2021
  • DocketAmended Complaint ( (1st)); Filed by Benjamin Caspi (Plaintiff); Anna Caspi (Plaintiff)

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  • 10/21/2021
  • DocketProof of Service (not Summons and Complaint); Filed by Benjamin Caspi (Plaintiff); Anna Caspi (Plaintiff)

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  • 10/04/2021
  • Docketat 08:30 AM in Department W, Virginia Keeny, Presiding; Case Management Conference - Held - Continued

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25 More Docket Entries
  • 07/21/2021
  • DocketProof of Service (not Summons and Complaint); Filed by Benjamin Caspi (Plaintiff)

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  • 07/21/2021
  • DocketNotice of Rejection Default/Clerk's Judgment; Filed by Clerk

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  • 07/21/2021
  • DocketProof of Service (not Summons and Complaint); Filed by Benjamin Caspi (Plaintiff)

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  • 07/20/2021
  • DocketDeclaration (Declaration of Demurring Party in Support of Automatic Extension); Filed by Hector Cano (Defendant)

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  • 07/20/2021
  • DocketProof of Service (not Summons and Complaint); Filed by Hector Cano (Defendant)

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  • 05/11/2021
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 05/10/2021
  • DocketComplaint; Filed by Benjamin Caspi (Plaintiff); Anna Caspi (Plaintiff)

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  • 05/10/2021
  • DocketCivil Case Cover Sheet; Filed by Benjamin Caspi (Plaintiff); Anna Caspi (Plaintiff)

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  • 05/10/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 05/10/2021
  • DocketSummons (on Complaint); Filed by Benjamin Caspi (Plaintiff); Anna Caspi (Plaintiff)

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Tentative Rulings

b"

Case Number: 21VECV00637 Hearing Date: October 28, 2021 Dept: W

BENJAMIN CASPI, et al. v. HECTOR CANO

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defendant cano’s motion to vacate and set\r\naside default

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Date of Hearing: October\r\n28, 2021 Trial Date: None set.

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Department: W Case\r\nNo.: 21VECV00637

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Moving Party: Defendant Hector Cano

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Responding Party: No opposition.

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BACKGROUND

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Plaintiffs own certain real property\r\n(the “Subject Property”). Plaintiffs allege defendant began constructing a\r\ndriveway on the Subject Property by placing concrete pavers along the Northwest\r\nend of the Subject Property and plaintiffs informed defendant on multiple occasions\r\nthat he was encroaching onto their property. Plaintiffs further allege defendant\r\ndelivered to plaintiffs an Easement Agreement, which proposed that plaintiffs\r\ngrant to defendant an easement area of 12 inches east of the defendant Property\r\nfor the purpose of “creating a path and/or driveway onto [Defendant Property]\r\nover such portion of [Subject Property].” However, at no time did plaintiffs\r\nagree to enter into the Easement Agreement.

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On May 10, 2021, plaintiffs filed a\r\ncomplaint. On October 21, 2021, plaintiffs filed a first amended complaint\r\nasserting causes of action for (1) quiet title; (2) trespass; (3) private\r\nnuisance; (4) ejectment; (5) trespass to timber; (6) trespass to chattels; and\r\n(7) conversion.

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Default was entered against defendant on\r\nJuly 27, 2021.

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[Tentative] Ruling

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Defendant Cano’s Motion to Vacate and\r\nSet Aside Default is GRANTED.

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discussion

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Defendant Hector Cano moves the court for an order to vacate and\r\nset aside the default entered against defendant on July 27, 2021. Defendant\r\nCano brings the motion on the grounds that the default entered by the court was\r\nthe result of error, given that defendant had properly filed a declaration in\r\nsupport of an automatic extension pursuant to Code of Civ. Proc. §430.31 on\r\nJuly 20, 2021.

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Code of Civil Procedure section 473(d) provides that “[t]he court\r\nmay . . . on motion of either party after notice to the other party, set aside\r\nany void judgment or order.” (CCP §473(d).) Relief pursuant to section 473(d)\r\nmay be made at any time. (See Manson, Iver & York v. Black (2009)\r\n176 Cal.App.4th 36, 42.)

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Defendant argues defendant's previous counsel filed a Declaration\r\nof Demurring or Moving Party in Support of an Automatic Extension on July 20,\r\n2021. (See Exhibit B.) Code of Civil Procedure section 430.41 provides that “[i]f\r\nthe parties are not able to meet and confer at least five days prior to the\r\ndate the responsive pleading is due, the demurring party shall be granted an\r\nautomatic 30-day extension of time within which to file a responsive pleading,\r\nby filing and serving, on or before the date on which a demurrer would be due, a\r\ndeclaration stating under penalty of perjury that a good faith attempt to meet\r\nand confer was made and explaining the reasons why the parties could not meet\r\nand confer. The 30-day extension shall commence from the date the responsive\r\npleading was previously due, and the demurring party shall not be subject to\r\ndefault during the period of the extension.” (CCP §430.41.) (emphasis\r\nadded.) As such, defendant was entitled to a 30-day extension commencing on\r\nJuly 20, 2021. Defendants contends as a result, the default entered against defendant\r\non about July 27, 2021 is void and should be set aside on this basis.

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The court agrees. To obtain the automatic extension, the demurring\r\nparty must file and serve, on or before the date the demurrer would be due, a\r\ndeclaration stating under penalty of perjury that a good faith attempt to meet\r\nand confer was made or why the parties could not timely meet and confer. The\r\nparties had agreed that a responsive pleading was due July 20, 2021. (Exh. A.)\r\nOn that date, defendant filed a declaration in support of automatic extension.\r\n(Exh. B.) The declaration was served the same day. (Exh. C.) The Clerk’s office\r\noriginally rejected the request for entry of default on these grounds on July\r\n21, 2021 but granted the request only one week later. (Exh. D.)

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The court notes defendant also moves on the grounds that the\r\ndefault was entered due to the party’s mistake, inadvertence, surprise, or\r\nexcusable neglect. Defendant contends the default entered against defendant in\r\nthis action occurred as a surprise. Defendant's previous counsel relied on\r\nhaving an automatic 30-day extension as of July 20, 2021 for which to respond\r\nto Plaintiffs' complaint pursuant to CCP §430.41. The court finds basis to\r\nvacate the default on these grounds as well.

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Accordingly, defendant’s motion to vacate and set aside default is\r\nGRANTED.

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