This case was last updated from Los Angeles County Superior Courts on 10/18/2021 at 11:07:54 (UTC).

CAROL ANN EJDOWSKA BORISON VS NICHOLAS GUTSUE

Case Summary

On 06/04/2021 CAROL ANN EJDOWSKA BORISON filed a Contract - Other Contract lawsuit against NICHOLAS GUTSUE. This case was filed in Los Angeles County Superior Courts, Santa Monica Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******1001

  • Filing Date:

    06/04/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff

EJDOWSKA BORISON CAROL ANN

Defendant

GUTSUE NICHOLAS

Attorney/Law Firm Details

Plaintiff Attorney

SARKISSIAN AREG ALLEN

Defendant Attorney

RUTTENBERG KENNETH GARY

 

Court Documents

Declaration - DECLARATION DECLARATION OF CAROL ANN EJDOWSKA BORISON IN SUPPORT OF PLAINTIFF'S NOTICE OF AND MOTION FOR RECONSIDERATION

9/29/2021: Declaration - DECLARATION DECLARATION OF CAROL ANN EJDOWSKA BORISON IN SUPPORT OF PLAINTIFF'S NOTICE OF AND MOTION FOR RECONSIDERATION

Complaint

6/4/2021: Complaint

 

Docket Entries

  • 03/09/2022
  • Hearing03/09/2022 at 08:30 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Hearing on Motion for Reconsideration

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  • 12/16/2021
  • Hearing12/16/2021 at 08:30 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Case Management Conference

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  • 09/29/2021
  • DocketDeclaration (DECLARATION OF CAROL ANN EJDOWSKA BORISON IN SUPPORT OF PLAINTIFF'S NOTICE OF AND MOTION FOR RECONSIDERATION); Filed by Carol Ann Ejdowska Borison (Plaintiff)

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  • 09/29/2021
  • DocketMotion for Reconsideration; Filed by Carol Ann Ejdowska Borison (Plaintiff)

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  • 09/29/2021
  • DocketDeclaration (DECLARATION OF BIANCA PANOSIAN IN SUPPORT OF PLAINTIFFS NOTICE OF AND MOTION FOR RECONSIDERATION); Filed by Carol Ann Ejdowska Borison (Plaintiff)

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  • 09/28/2021
  • Docketat 08:30 AM in Department M; Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) - Held - Motion Granted

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  • 09/28/2021
  • DocketMinute Order ( (Hearing on Motion to Set Aside/Vacate Default (CCP 473.5))); Filed by Clerk

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  • 09/28/2021
  • DocketAnswer; Filed by Nicholas Gutsue (Defendant)

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  • 09/21/2021
  • DocketReply (to Opposition to Motion to Set Aside Default); Filed by Nicholas Gutsue (Defendant)

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  • 09/20/2021
  • DocketOpposition (Opposition to Defendant's Motion to Set Aside the Judgement); Filed by Carol Ann Ejdowska Borison (Plaintiff)

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10 More Docket Entries
  • 09/02/2021
  • DocketDeclaration Pursuant to 585 CCP in Support of Default Judgment; Filed by Carol Ann Ejdowska Borison (Plaintiff)

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  • 08/23/2021
  • DocketRequest for Entry of Default / Judgment; Filed by Carol Ann Ejdowska Borison (Plaintiff)

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  • 07/15/2021
  • DocketProof of Publication; Filed by Carol Ann Ejdowska Borison (Plaintiff)

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  • 06/16/2021
  • DocketOrder for Publication; Filed by Carol Ann Ejdowska Borison (Plaintiff)

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  • 06/14/2021
  • DocketApplication for Publication; Filed by Carol Ann Ejdowska Borison (Plaintiff)

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  • 06/04/2021
  • DocketComplaint; Filed by Carol Ann Ejdowska Borison (Plaintiff)

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  • 06/04/2021
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/04/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 06/04/2021
  • DocketCivil Case Cover Sheet; Filed by Carol Ann Ejdowska Borison (Plaintiff)

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  • 06/04/2021
  • DocketSummons (on Complaint); Filed by Carol Ann Ejdowska Borison (Plaintiff)

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Tentative Rulings

b'

Case Number: 21SMCV01001 Hearing Date: September 28, 2021 Dept: M

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Case Name: Carol Ann Ejdowska Borison v. Nicholas\r\nGutsue

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Case No.: 21SMCV01001

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Motion:\r\n Motion to Set Aside Default

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Hearing\r\nDate: 09/28/2021

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BACKGROUND

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On\r\nJanuary 27, 2021, Plaintiff Carol Ann Ejdowska Borison (“Borison”) filed a\r\ncomplaint against Defendants Nicholas Guts and Does 1 -100 alleging causes of\r\naction for breach of contract, breach of fiduciary duty, fraud, financial elder\r\nabuse, negligent misrepresentation, conversion, and declaratory relief. Borison obtained an order allowing Defendant\r\nNicholas Gutsue to be served by publication. Borison filed a proof of publication on July\r\n15, 2021. On August 23, 2021, Borison filed a request for entry of judgment. On September 10, 2021, Gutsue filed a motion\r\nto set aside the default. On September\r\n13, 2021, the Court granted Borison’s request for entry of default judgment.

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At\r\nthe ex parte, the Court shortened the time for the opposition and reply. This motion is fully briefed. The Court also\r\nordered entry of judgment stayed until 9/28/21.

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Legal Standard

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Under Code of Civil Procedure,\r\nsection 473(b), an application for relief based on a party’s mistake,\r\ninadvertence, surprise, or excusable neglect must be\r\nmade no more than six months after entry of the order from which relief is\r\nsought, and must be accompanied by an affidavit of fault attesting to the\r\nmoving party’s mistake, inadvertence, surprise or neglect. (Code Civ. Proc., §\r\n473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130,\r\n143.) Application for\r\nthis relief shall be accompanied by a copy of the answer or other pleading\r\nproposed to be filed therein, otherwise the application shall not be granted,\r\nand shall be made within a reasonable time, in no case exceeding six months,\r\nafter the judgment, dismissal, order, or proceeding was taken.” (Code\r\nCiv. Proc., § 473(b).)

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“It is\r\nthe policy of the law to favor, wherever possible, a hearing on the merits, and\r\nappellate courts are much more disposed to affirm an order where the result is\r\nto compel a trial upon the merits than they are when the judgment by default is\r\nallowed to stand and it appears that a substantial defense could be made.\r\nStated another way, the policy of the law is to have every litigated case tried\r\nupon its merits, and it looks with disfavor upon a party, who, regardless of\r\nthe merits of the case, attempts to take advantage of the mistake, surprise,\r\ninadvertence, or neglect of his adversary.” (Weitz v. Yankosky (1966) 63\r\nCal.2d 849, 854–855; Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1146\r\n[“Section 473, subdivision (b) is construed liberally to further the policy of\r\nadjudicating legal controversies on the merits.”])

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Analysis

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This\r\nmotion is timely. Gutsue has also included the proposed\r\nanswer. (See Ex. F. to Parr Decl.) Gutsue, through his conservator, seeks\r\nan order setting aside the default in this case. Gutsue\r\nis 80, suffers from Alzheimer’s disease, and, in September 2020, had a\r\nconservator appointed over his estate. \r\n(See Par Decl. ¶¶ 2-4.) Gutsue argues that Plaintiff knew that Gutsue\r\nhad a conservator and counsel to assist him and the conservator, who had been\r\ncommunicating with Plaintiff and her counsel about her alleged claims in small\r\nclaims court, yet filed this suit and obtained default against Gutsue.

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Gutsue,\r\nthrough his conservator, contends that he has acted diligently since learning\r\nabout the default in late August 2021 by filing a motion to set aside default.\r\nGutsue contends that the default is a result of his mistake, inadvertence,\r\nsurprise, or excusable neglect because he is 80 and has Alzheimer’s disease. As a result, Gutsue did not know about the\r\nsuit, the efforts to serve him, or the order publishing suit. (See Parr Decl. ¶ 10.) Borison argues that the motion to set aside\r\ndefault is moot because the Court approved Plaintiff’s application for a\r\njudgment. This argument ignores the fact\r\nthat the Court stayed the judgment at the ex parte hearing. Borison also argues that Gutsue has failed to\r\nmeet the showing required to set aside a default judgment. However, Gutsue seeks to set aside a default\r\nand not a default judgment. Finally, Borison argues that Gutsue was aware of\r\nthe lawsuit because Gutsue was served via publication. In reply, Gutsue argues\r\nthat due to his ill health and mental condition, Gutsue didn’t know that\r\nPlaintiff was trying to serve him.

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“The existence of some degree of mental confusion or illness of the\r\nparty moving to set aside an order supports granting the motion, and the court\r\nmay infer the existence of such problems from the whole record before it. (See Karlein\r\nv. Karlein (1951) 103 Cal.App.2d 496, 229 P.2d 831.)” (In re Marriage of Kerry (1984) 158\r\nCal.App.3d 456, 466.) Here, Gutsue has presented evidence that\r\nhe suffers from Alzheimer’s disease and did not know about the suit, the\r\nefforts to serve him, or the order publishing suit. (See Parr Decl. ¶ 10.) The Court finds that Gutsue has shown excusable\r\nneglect. Therefore, the motion to set aside default is GRANTED.

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