FRANCISCO ROCHA VS ERIC CHAPMAN ET AL

Tentative Rulings

Case Number: BC654148    Hearing Date: July 29, 2020    Dept: M

Hearing Date: July 29, 2020

Moving Parties: Defendant Ken Gerstenfeld (as Doe 5)

Responding Party: None

Motion for Relief from Default

The court considered the moving papers.

RULING

The motion is GRANTED. The answer is deemed filed.

BACKGROUND

On March 15, 2017, Francisco Rocha filed a complaint against Eric Chapman, Canterbury Knolls Construction, and Lemoli Avenue Homeowners Association for (1) negligence. Plaintiff alleges that in September 2015, plaintiff was hired to work on the premises by defendants. From that time to the time of the incident, defendants provided plaintiff with the tools to complete the assigned tasks and the work performed was directed by defendants. Each defendant exercised its retained control over worksite safety conditions of the premises at the time of the incident. Defendants owed plaintiff a duty to use care in ordinary activities, including supplying safe equipment and a safe working environment for plaintiff to perform his work. On September 23, 2015, plaintiff was seriously injured at the premises as a result of performing his tasks on the remodeling and renovation project. Defendants breached their duties by instructing its workers, including plaintiff, to lift a large heavy beam up a ladder without the proper equipment, tools, or safety gear. Defendants are presumptively negligent for plaintiff’s damages for failure to carry the mandatory worker’s compensation insurance.

On August 23, 2018, Lemoli Avenue HOA filed a cross-complaint.

On August 13, 2019, Mayan Patel filed a cross-complaint.

On September 26, 2019, Ray Consulting Group Ventures, Inc. filed a cross-complaint.

On January 24, 2020, a default was entered against Ken Gerstenfeld (Doe 5).

LEGAL AUTHORITY

“The court may, upon terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” CCP § 473(b).

“When a default is the attorney’s fault the court must grant a timely noticed motion for relief. The only limitation is when the court finds the default was not in fact the attorney’s fault . . . .” Rogalski v. Nabers Cadillac (1992) 11 Cal. App. 4th 816, 821 (citation omitted). In addition, to obtain mandatory relief under CCP section 473(b), the attorney’s mistake, neglect, surprise or inadvertence must be the proximate cause of the entry. See Milton v. Perceptual Development Corp. (1997) 53 Cal. App. 4th 861, 867 (“The clause in section 473, subdivision (b) which mandates the court to grant relief unless it finds that the default was not in fact caused by lawyer error is not only a credibility testing device. It is also ‘a causation testing device.’” (Citation omitted)).

“[T]he policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.” Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 697 (citations and internal quotations omitted).

DISCUSSION

Defendant Ken Gerstenfeld requests that the court set aside the default entered against him on January 24, 2020, pursuant to CCP §473.

In a declaration in support, Ken Gerstenfeld states that he was a principal in an entity “by the name of S/K something.” He believes it was an S corporation that was building 14 townhomes leading up to 2008, which were the subject properties. He states that they sold all the properties at a huge loss and dissolved the corporation in about 2009. He states, “we had nothing to do with the properties after 2009.” He states further that “[w]e were trying to clear up the misunderstanding of the plaintiff and had discussions with them and we understood they were going to dismiss us. I was relying on legal advice from attorney Donald Disimone in this matter. He did not tell me to file an answer. I believed it was all handled.” According to counsel’s declaration, he attended a deposition with Gerstenfeld in this matter and spoke to opposing counsel. He states: “A few emails etc. were sent. It was my understanding that the attorney was going to dismiss the case against Ken Gerstenfeld because it had no basis in law or fact. We supplied information and I just presumed that was the end of it. . . . In hindsight, I should have just had the answer filed instead of relying upon and trusting an attorney to dismiss it.”

The court finds that defendant has met his burden of showing that the default was the result of defense counsel’s mistake, inadvertence, surprise, and/or neglect. Relief is mandatory under CCP §473(b).

The motion is GRANTED.

Moving defendant is ordered to give notice of the motion.

Case Number: BC654148    Hearing Date: July 28, 2020    Dept: M

Hearing Date: July 29, 2020

Moving Parties: Defendant Ken Gerstenfeld (as Doe 5)

Responding Party: None

Motion for Relief from Default

The court considered the moving papers.

RULING

The motion is GRANTED. The answer is deemed filed.

BACKGROUND

On March 15, 2017, Francisco Rocha filed a complaint against Eric Chapman, Canterbury Knolls Construction, and Lemoli Avenue Homeowners Association for (1) negligence. Plaintiff alleges that in September 2015, plaintiff was hired to work on the premises by defendants. From that time to the time of the incident, defendants provided plaintiff with the tools to complete the assigned tasks and the work performed was directed by defendants. Each defendant exercised its retained control over worksite safety conditions of the premises at the time of the incident. Defendants owed plaintiff a duty to use care in ordinary activities, including supplying safe equipment and a safe working environment for plaintiff to perform his work. On September 23, 2015, plaintiff was seriously injured at the premises as a result of performing his tasks on the remodeling and renovation project. Defendants breached their duties by instructing its workers, including plaintiff, to lift a large heavy beam up a ladder without the proper equipment, tools, or safety gear. Defendants are presumptively negligent for plaintiff’s damages for failure to carry the mandatory worker’s compensation insurance.

On August 23, 2018, Lemoli Avenue HOA filed a cross-complaint.

On August 13, 2019, Mayan Patel filed a cross-complaint.

On September 26, 2019, Ray Consulting Group Ventures, Inc. filed a cross-complaint.

On January 24, 2020, a default was entered against Ken Gerstenfeld (Doe 5).

LEGAL AUTHORITY

“The court may, upon terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” CCP § 473(b).

“When a default is the attorney’s fault the court must grant a timely noticed motion for relief. The only limitation is when the court finds the default was not in fact the attorney’s fault . . . .” Rogalski v. Nabers Cadillac (1992) 11 Cal. App. 4th 816, 821 (citation omitted). In addition, to obtain mandatory relief under CCP section 473(b), the attorney’s mistake, neglect, surprise or inadvertence must be the proximate cause of the entry. See Milton v. Perceptual Development Corp. (1997) 53 Cal. App. 4th 861, 867 (“The clause in section 473, subdivision (b) which mandates the court to grant relief unless it finds that the default was not in fact caused by lawyer error is not only a credibility testing device. It is also ‘a causation testing device.’” (Citation omitted)).

“[T]he policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.” Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 697 (citations and internal quotations omitted).

DISCUSSION

Defendant Ken Gerstenfeld requests that the court set aside the default entered against him on January 24, 2020, pursuant to CCP §473.

In a declaration in support, Ken Gerstenfeld states that he was a principal in an entity “by the name of S/K something.” He believes it was an S corporation that was building 14 townhomes leading up to 2008, which were the subject properties. He states that they sold all the properties at a huge loss and dissolved the corporation in about 2009. He states, “we had nothing to do with the properties after 2009.” He states further that “[w]e were trying to clear up the misunderstanding of the plaintiff and had discussions with them and we understood they were going to dismiss us. I was relying on legal advice from attorney Donald Disimone in this matter. He did not tell me to file an answer. I believed it was all handled.” According to counsel’s declaration, he attended a deposition with Gerstenfeld in this matter and spoke to opposing counsel. He states: “A few emails etc. were sent. It was my understanding that the attorney was going to dismiss the case against Ken Gerstenfeld because it had no basis in law or fact. We supplied information and I just presumed that was the end of it. . . . In hindsight, I should have just had the answer filed instead of relying upon and trusting an attorney to dismiss it.”

The court finds that defendant has met his burden of showing that the default was the result of defense counsel’s mistake, inadvertence, surprise, and/or neglect. Relief is mandatory under CCP §473(b).

The motion is GRANTED.

Moving defendant is ordered to give notice of the motion.

Case Number: BC654148    Hearing Date: June 23, 2020    Dept: SWM

Hearing Date: June 23, 2020

Moving Parties: Defendants, cross-complainants, and cross-defendants Mayan Patel and Ray Consulting Group Ventures, Inc.

Responding Party: None

Motion to Compel Eric Chapman, Sr. to Attend, Testify, and Produce Documents at Deposition

The court considered the moving papers.

RULING

The motion is GRANTED. The court orders Eric Chapman, Sr. to appear for his deposition and to produce documents in response to the Mayan Patel and Ray Consulting Group Ventures, Inc.’s deposition subpoena served January 12, 2020, within 30 days at a mutually agreeable place and time.

BACKGROUND

On March 15, 2017, Francisco Rocha filed a complaint against Eric Chapman, Canterbury Knolls Construction, and Lemoli Avenue Homeowners Association for (1) negligence. Plaintiff alleges that in September 2015, plaintiff was hired to work on the premises by defendants. From that time to the time of the incident, defendants provided plaintiff with the tools to complete the assigned tasks and the work performed was directed by defendants. Each defendant exercised its retained control over worksite safety conditions of the premises at the time of the incident. Defendants owed plaintiff a duty to use care in ordinary activities, including supplying safe equipment and a safe working environment for plaintiff to perform his work. On September 23, 2015, plaintiff was seriously injured at the premises as a result of performing his tasks on the remodeling and renovation project. Defendants breached their duties by instructing its workers, including plaintiff, to lift a large heavy beam up a ladder without the proper equipment, tools, or safety gear. Defendants are presumptively negligent for plaintiff’s damages for failure to carry the mandatory worker’s compensation insurance.

On August 23, 2018, Lemoli Avenue HOA filed a cross-complaint.

On August 13, 2019, Mayan Patel filed a cross-complaint.

On September 26, 2019, Ray Consulting Group Ventures, Inc. filed a cross-complaint.

LEGAL AUTHORITY

CCP §2025.450(a) provides: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.”

CCP §2025.450(b) provides, “A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

CCP §1987.1(a) states, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

“[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas.” Lee v. Swansboro Country Property Owners Ass'n (2007) 151 Cal. App. 4th 575, 582-83. Either the nonparty witness who has been subpoenaed or any party to the action may challenge the deposition subpoena. Weil & Brown, Civ. Proc. Before Trial, ¶ 8:597.

DISCUSSION

Defendants, cross-complainants, and cross-defendants Mayan Patel and Ray Consulting Group Ventures, Inc. request an order compelling Eric Chapman, Sr. to attend, testify, and to produce documents at deposition, pursuant to a deposition subpoena.

Moving parties explain that this matter arises out of injuries plaintiff sustained while working for defendants and cross-defendants Eric Chapman, Sr. and Chapman’s company, Canterbury Knolls Construction. Chapman and Canterbury Knolls Construction have not appeared in this matter. On December 23, 2019, a default was entered against Chapman on moving defendants’ cross-complaint.

On December 27, 2019, moving defendants issued a deposition subpoena for Chapman to appear for deposition and to produce documents on January 28, 2020. On January 12, 2020, moving defendants personally served the subpoena on Chapman. Chapman failed to appear for his deposition. On February 3, 2020, defense counsel sent a letter to Chapman requesting that he contact them to reschedule the deposition. As of the date of filing the motion, Chapman had not responded.

Moving defendants contend that such information, including as to the request for production of documents, is relevant to plaintiff’s claim that he was injured on the premises while working for Chapman. Plaintiff has identified him as a witness. Further, Chapman is named as a cross-defendant for indemnity and contribution.

The court finds that moving defendants properly served Chapman with a deposition subpoena and that he failed to appear and to produce documents. The motion is timely.

According, the motion is GRANTED.

Moving parties are ordered to serve notice of this ruling.