Rulings 1

TENTATIVE RULINGS

DEPT W15

JUDGE RICHARD Y. LEE

Date August 24, 2023

Civil Court Reporters: The Court does not provide court reporters for law and motion hearings. Please see the Court’s website for rules and procedures for court reporters obtained by the Parties.

Tentative Rulings: The Court will endeavor to post tentative rulings on the Court’s website by 5 p.m. on Wednesday. Do NOT call the Department for a tentative ruling if none is posted. The Court will NOT entertain a request for continuance or the filing of further documents once a tentative ruling has been posted.

Submitting on the Tentative Ruling: If ALL counsel intend to submit on the tentative ruling and do not wish oral argument, please advise the Court’s clerk or courtroom attendant by calling (657) 622-5915. If all sides submit on the tentative ruling and so advise the Court, the tentative ruling shall become the Court’s final ruling and the prevailing party shall give Notice of Ruling and prepare an Order for the Court’s signature if appropriate under CRC 3.1312. Please do not call the Department unless ALL parties submit on the tentative ruling.

Non-Appearances: If no one appears for the hearing and the Court has not been notified that all parties submit on the tentative ruling, the Court shall determine whether the matter is taken off calendar or whether the tentative ruling shall become the final ruling.

Remote Appearances: Department W15 generally conducts non-evidentiary proceedings, including law and motion, remotely, by Zoom videoconference: (1) All counsel and self-represented parties appearing for such hearings must, prior to 1:30 p.m. on Thursday, check-in online via the Court's civil video appearance website at https://www.occourts.org/media-relations/civil.html. (2) Participants will then be prompted to join the courtroom’s Zoom hearing session. (3) The calendar will be displayed and participants will then be instructed to rename their Zoom name to include their hearing’s calendar number. Check-in instructions and an instructional video are available on the court’s website. All remote video participants shall comply with the Court’s “Guidelines for Remote Appearances” posted online. In compliance with Local Rule 375, parties preferring to be heard in-person, instead of remotely, shall provide notice of in-person appearance to the court and all other parties five (5) days in advance of the hearing. (See the appropriate Local Form available at https://www.occourts.org/forms/formslocal.html).

Loput vs. Line Drive Trucking, Inc.

Case No. 30-2021-01231426

Plaintiff, Stephanie Loput (“Plaintiff”), moves for an order awarding monetary sanctions in the amount of $9,580 against Defendant Man Staffing, LLC’s counsel, Rick Martin of Angel City Law, for his bad faith actions and tactics pursuant to Code of Civil Procedure section 128.5(a) and California Rules of Court, rule 2.30.

Plaintiff contends that monetary sanctions in the amount of $9,580 should be imposed against Defendant Man Staffing, LLC’s counsel, Rick Martin of Angel City Law, who has since withdrawn as counsel, for his frivolous conduct, gamesmanship, and unnecessary delays, which includes compensation for all the expenses Plaintiff has incurred that are attributable to his conduct, including the cost of bringing the instant motion and any other expenses attendant upon the delay of the deposition. Plaintiff asserts that Plaintiff planned to file her motion for summary adjudication in March 2023, and so attempted to first notice the deposition of Man Staffing, LLC’s person most knowledgeable (“PMK deposition”) for December 2022 on a date convenient to Man Staffing and Man Staffing’s counsel. Plaintiff provides that she agreed to continue the PMK deposition to a date in January and then to a date in February based on Mr. Martin’s representations that the date certain he had previously given no longer worked, but that Mr. Martin’s representations concerning the scheduling of the deposition were knowingly false as Mr. Martin never informed his client that any PMK deposition notice had been served, or that any PMK deposition had been scheduled. Plaintiff contends that Mr. Martin simply lied to a fellow officer of the court and that he could not possibly have intended the deposition to go forward without ever having cleared the date with or informing his client that a PMK deposition was scheduled such that Mr. Martin’s conduct is objectively unreasonable and frivolous, and were obviously in bad faith and solely intended to cause unnecessary delay. Plaintiff argues that Mr. Martin knew that the deposition had to take place so that Plaintiff could proceed with her dispositive motion, but that his gamesmanship has materially prejudiced Plaintiff, causing unnecessary delay and added litigation expenses, falling short of the standards required by the Rules of Professional Conduct, Rule 4.1.

Plaintiff additionally contends that she attempted to meet and confer with Mr. Martin regarding his frivolous conduct, gamesmanship and resulting unnecessary delays, but that he did not respond. Plaintiff further requests that the Court refer Mr. Martin to the State Bar, specifically the Office of Chief Trial Counsel.

Counsel at issue, Rick Martin, has filed a memorandum of points and authorities in opposition which asserts, in first person voice, that there was never any gamesmanship, bad faith, or ill will on counsel’s part; that there was no frivolousness on counsel’s part; that there was no intent to cause Plaintiff any hardship or prejudice her case; that any delay in taking the deposition or continuances were caused by poor scheduling, calendar conflicts, or miscommunications; that there was uncertainty between counsel and former client Man Staffing LLC as to counsel’s role and whether counsel was to remain as counsel at the time the deposition were being scheduled due to non-payment of retainer fees; and that Counsel did offer to pay for the cancellation fee incurred during to continuing the deposition, and Counsel paid the cancellation fee of $720 on or about April 2023. Counsel provides that he believes that the fair action is to compensate Plaintiff for fees and costs incurred with this motion, that Counsel will be reaching out to Plaintiff’s counsel to discuss this prior to the motion hearing, and that Counsel requests that the Court deny the motion for sanctions.

Code of Civil Procedure section 128.5 states, in part: “[a] trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc. § 128.5(a).) Code of Civil Procedure section 128.5(b)(2) defines “frivolous” to mean “totally and completely without merit or for the sole purpose of harassing an opposing party.”

“Expenses pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers or, on the court’s own motion, after notice and opportunity to be heard.” (Code Civ. Proc. § 128.5(c).)

The party moving for sanctions has the burden of proving sanctionable conduct. (San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, 1319-1320.) “If the party seeking sanctions satisfies its burden, the burden of producing evidence shifts to the party opposing the sanctions motion to refute the moving party’s prima facie case. The trial court has the discretion to consider further briefing and evidence before ruling on the motion.” (Id. at p. 1320.) “If the trial court determines sanctions are appropriate, it must determine the type and amount of sanctions and whether to impose sanctions on counsel, the client or both.” (Ibid.)

“The weight of authority requires a showing not only of a meritless or frivolous action or tactic but also of a bad faith taking of the action or tactic. The bad faith requirement does not impose a determination of evil motive and subjective bad faith may be inferred from the prosecution of a frivolous action.” (Childs v. Paine-Webber, Inc. (1994) 29 Cal.App.4th 982, 996.) “Whether an action is frivolous is governed by an objective standard: any reasonable attorney would agree it is totally and completely without merit. [Citations.] There must also be a showing of an improper purpose, i.e., subjective bad faith on the part of the attorney or party to be sanctioned. [Citations.]” (Levy v. Blum (2001) 92 Cal.App.4th 625, 635.) “Section 128.5 requires much more than a party acting with ‘no good reason’ to justify an award of sanctions. There must be showing not only of a meritless or frivolous action or tactic, but also of bad faith. [Citation.]” (Id. at pp. 635-636.) Subjective bad faith applicable under Section 128.5 is “without subjective good faith or honest belief in the propriety or reasonableness of such actions,” or an improper purpose. (In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 135.)

Under Section 128.5, the court order must contain a detailed recital of the circumstances justifying imposition of sanctions. (Levy v. Blum (2001) 92 Cal.App.4th 625, 635; Corralejo v. Quiroda (1984) 152 Cal.App.3d 871, 874.)

Initially, the Court notes that footnote 1 of the instant Motion for Sanctions contends that Mr. Martin has since withdrawn as counsel. However, no evidence is presented to support this assertion, and no substitution of attorney for Defendant, Man Staffing, LLC (“Man Staffing”) appears in the Court’s file. Therefore, it appears from the Court’s file that Mr. Martin still represents Man Staffing.

Plaintiff contends that Mr. Martin engaged in bad faith actions that were frivolous and solely intended to cause unnecessary delay. Plaintiff provides that she attempted to schedule the deposition the PMK for Man Staffing three times on dates certain given by Mr. Martin which were convenient to him and his client, but that Mr. Martin represented that the dates did not work each time. (Declaration of Barbara DuVan-Clarke, ¶¶ 2-7, Exs. A-F.) Plaintiff counsel then states, “I subsequently learned that each of these representations concerning the scheduling of the deposition were knowingly false. New counsel for Defendant MAN, Marc Grismer, indicated that he and his client had never been informed of receiving any PMK deposition notice, and had never been asked to provide dates for such a deposition.” (Id., ¶ 8.) Plaintiff’s counsel states, “On information and belief, Mr. Martin never informed his client that any person most knowledgeable deposition notice had been served, or that any person most knowledgeable deposition had been scheduled.” (Id., ¶ 9.) Plaintiff’s counsel also states, “On information and belief, there was no ‘last minute personal matter’ preventing the deposition in January. Mr. Martin simply lied to me repeatedly.” (Id., ¶ 10.)

No objection to the statements in Plaintiff’s counsel’s declaration have been filed; however, the Court finds that the latter three statements, two of which are made “[o]n information and belief” based on hearsay, are not sufficiently supported by admissible evidence rendering them unreliable and prejudicial to Mr. Martin if he were to be sanctioned based on such statements.

“Trial courts possess some inherent power to exclude objectionable evidence on their own motion, but ‘[i]t has been suggested that this power should be exercised only where evidence is irrelevant, unreliable, misleading, or prejudicial, and that relevant and useful evidence that is merely incompetent under technical exclusionary rules ought to be received in the absence of objection by counsel.’ [Citations.]” (Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 173, emphasis in original.)

The Court finds that Plaintiff has not met her burden of proving sanctionable conduct, and that the burden does not shift to Mr. Martin. Plaintiff’s Motion for Sanctions against Mr. Martin is DENIED.

Clerk to give notice.

Hernandez Carrizal vs. Nissan North America, Inc.

Case No. 30-2022-01265107

Defendants Nissan North America, Inc. and Mossy Nissan Oceanside (“Defendants”) filed a joint Motion to Compel Arbitration and Request for Judicial Notice.

As an initial matter, Defendants’ unopposed Request for Judicial Notice is GRANTED.

The Court recognizes that there is a split of authority on the issue. The Third District in Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 found that an arbitration agreement contained in a sales contract between the dealer and purchaser could be enforceable against the manufacturer under the doctrine of equitable estoppel. More recently, Div. 8 of the Second District in Ford Motor Warranty Cases v. Ford Motor Co. (2023) 89 Cal.App.5th 1324 (rev. granted 7/19/2023) and Div. 7 of the Second District Montemayor v. Ford Motor Co. (2023) 92 Cal.App.5th 958, 310 Cal.Rptr. 3d 82 (June 26, 2023) disagreed with the reasoning in Felisilda and concluded that the manufacturer was not entitled to enforce the arbitration agreement.

When there is a split in authority, the trial court may follow the decision it finds to be the most persuasive. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456 [when “appellate decisions are in conflict” a “court exercising inferior jurisdiction can and must make a choice between the conflicting decisions”].)

In reviewing the cases, this humble trial court is persuaded that the typical arbitration agreement found in these purchase contracts between the purchaser and the car dealership does not explicitly encompass the manufacturer. Specifically, the language provides that “either you or we” could elect to arbitrate, in relevant part, “[a]ny claim or dispute ... between you and us or our employees, agents, successors or assigns, which arises out of or relates to ... [the] condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who did not sign this contract)....” (emphasis added.) In other words, this court agrees that the term “third parties who do not sign this contract” refers to the subject matter of the claims, not the scope of who may enforce the arbitration provision. (See Kielar v. Superior Court (Aug. 16, 2023, C096773) 2023 WL 5270559; Montemayor v. Ford Motor Company (2023) 92 Cal.App.5th 958, 971; Ford Motor Warranty Cases v. Ford Motor Co. (2023) 89 Cal.App.5th 1324, 1334-1335, rev. granted 7/19/2023.)

The court notes that the Felisilda court largely relied on this express language to support its conclusion that the purchaser’s claims against the manufacturer are inextricably intertwined with the sale contract. (Felisilda, supra, 53 Cal.App.5th at p. 498). However, as set forth in Montemayor, “the parenthetical language referring to third-party nonsignatories was a delineation of the subject matter of claims the purchasers and dealers agreed to arbitrate, but the purchasers clearly agreed only to arbitrate disputes between ‘you and us,’ that is, with the dealership. In other words, [t]he ‘third party’ language in the arbitration clause means that if a purchaser asserts a claim against the dealer (or its employees, agents, successors or assigns) that relates to one of these third party transactions, the dealer can elect to arbitrate that claim. It says nothing of binding the purchaser to arbitrate with the universe of unnamed third parties.” (Montemayor, supra, 92 Cal.App.5th at p. --, 310 Cal.Rptr.3d at 92 (quoting and relying on Ford Motor Warranty Cases v. Ford Motor Co. (2023) 89 Cal.App.5th 1324 (rev. granted 7/19/2023); quotations and citations omitted.)

Accordingly, the court disagrees with Felisilda’s reasoning here. The court believes that the better argument for the manufacturer is that the manufacturer’s claims are inextricably intertwined with the car dealership and is not the result of “but-for” causation. However, Felisilda specifically declined to “resolve the conflict between the . . . federal district courts regarding the applicability of the ‘but-for’ test for equitable estoppel as it relates to arbitrability.” (Felisilda, supra, 53 Cal.App.5th at p. 497). Accordingly, the court is bound to follow the analysis set forth in Montemayor and Ford Motor Warranty Cases and their reliance on DMS Services, LLC v. Superior Court (2012) 205 Cal.App.4th 1346, 1348-49 (holding “[t]his argument confuses the concept of ‘claims founded in and intertwined with the argument containing the arbitration clause’ with but-for causation.”). There is no conflict.

Accordingly, the petition to compel arbitration by the manufacturer is DENIED.

Plaintiff to give notice.

Perez vs. Hyundai Motor America

Case No. 30-2022-01290733

Defendant Hyundai Motor America (“HMA”) moves to compel Plaintiff Francisco M. Perez (“Plaintiff”) to arbitrate the claims raised in this action and for an order staying this action pending the resolution of arbitration. HMA contends it is entitled to enforce an arbitration provision between Plaintiff and the signatory selling dealership under the doctrine of equitable estoppel and as a third party beneficiary.

A party to an arbitration agreement may seek a court order compelling the parties to arbitrate a dispute covered by the agreement. (Code Civ. Proc., § 1281.2.) “The trial court may resolve motions to compel arbitration in summary proceedings, in which ‘[t]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.’” (Lane v. Francis Capital Management LLC (2014) 224 Cal.App.4th 676, 683.)

Accordingly, the petition to compel arbitration by the manufacturer is DENIED.

The parties should be prepared to appear for the Case Management Conference.

Plaintiff to give notice.

Mata vs. Benitez Gonzalez

Case No. 30-2022-01267686

Defendant Oscar Daniel Benitez Gonzalez (“Defendant”) moves for an order (1) compelling Plaintiffs Juan Valencia, Cruz Mata and Lucina Perez Serrato to serve responses to Defendant’s first set of Requests for Production; (2) deeming the truth of all matters specified in Plaintiff’s first set of Requests for Admission as admitted; (3) compelling Plaintiffs Juan Valencia and Cruz Mata to serve responses to Defendant’s first set of Special Interrogatories and Form Interrogatories; and (4) imposing monetary sanctions.

Code of Civil Procedure sections 2030.290 and 2031.300 state that if a party to whom interrogatories or a demand for inspection “fails to serve a timely response to it,” the party waives any and all objections and the propounding party may move for an order compelling responses to the interrogatory or demand. (Code Civ. Proc., §§ 2030.290(a)-(b), 2031.300(a)-(b).) These sections also state “the court shall impose a monetary sanction . . . against any party, person or attorney who unsuccessfully makes or opposes a motion . . . unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §§ 2030.290(c), 2031.300(c).)

Code of Civil Procedure section 2033.280(b) provides that, when a party fails to serve a timely response to requests for admission, “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010).” Subdivision (c) provides that the Court shall make this order, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.”

Defendant served the written discovery on Valencia, Mata and Serrato on December 6, 2022. (Boucher Decls., ¶¶ 3-4 (Rogs); ¶ 3 (RFPs, RFAs).) Valencia, Mata and Serrato failed to serve any responses. (Id., ¶ 5 (Rogs) ¶ 4 (RFAs).)

In light of the above, Defendant’s unopposed Motions are GRANTED. Valencia and Mata are ORDERED to serve verified responses, without objections, to Form Interrogatories, Special Interrogatories and Requests for Production Set One within 20 days. Serrato is ORDERED to serve verified responses, without objections, to Requests for Production Set One within 20 days. The matters in Requests for Admission, Set One are deemed admitted as to all three Plaintiffs.

The Court finds no substantial justification for Defendants’ failure to serve responses. Thus, the Court GRANTS Defendant monetary sanctions against Valencia, Mata and Serrato as follows:

Valencia and Mata are each ordered to pay sanctions to Defendant in the amount of $1,012.50.

Serrano is ordered to pay sanctions to Defendant in the amount of $490.

Plaintiff to give notice

Abstrax Labs, Inc. vs. C4 Distribution Co., LLC

Case No. 30-2021-01208987

Motion to Vacate Default

Defendant, C4 Distribution Co., LLC (“C4”) moves for an order vacating the default entered against it and granting it leave to file the same exact answer that was previously stricken.

C4 contends that it filed an Answer to Plaintiff’s Complaint on October 4, 2021; that it was a suspended entity until May 25, 2022, during which the Court granted Plaintiff’s motion to strike C4’s Answer; that on May 25, 2022, C4 revived its corporate status, but that since that time, Counsel has mistakenly proceeded as though the Answer filed by C4 was active in this case. C4 contends that Plaintiff failed to request a prove-up hearing relating to the default, and that Counsel was reminded of the default when Plaintiff’s counsel presented his Statement of the Case in August 2023. C4 asserts that the Court may relieve a party from default under Code of Civil Procedure section 473(b), and that its motion is filed within a reasonable period of time, not exceeding six months after entry of default. C4 also contends that there is no prejudice to Plaintiff and that the parties have conducted very little discovery and/or motion type practice except to continue the prior trial date in this case. C4 additionally argues that the attached declaration shows that the service of the Summons was improper, depriving the court of jurisdiction as to the defendant.

Plaintiff, Abstrax Labs, Inc. (“Plaintiff”), contends that C4’s motion to set aside the default is barred by the six-month limitation of Code of Civil Procedure section 473(b) and the court is without jurisdiction to consider it; that C4 has done nothing about the default until the eve of trial; that relief under Code of Civil Procedure section 473(d) is not applicable as the requested relief is not to correct a clerical error and the order is not void; and that C4 has not alleged there was any extrinsic fraud or mistake to justify the court’s equitable powers. Plaintiff also asserts that the default entered against C4 was not a result of mistake, inadvertence, surprise, or excusable neglect; that C4’s counsel’s statement that he has mistakenly been proceeding as though the answer filed by C4 was active is not a mistake or excusable neglect in allowing the default to be entered; and that Counsel’s statement is a delay in filing the motion to vacate, not in the entry of the underlying order such that the basic requirements of Code of Civil Procedure section 473(b) have not been satisfied and the motion should be denied. Plaintiff argues that Counsel’s statement that he thought that C4’s answer was active is disingenuous as there are at least three pleadings that refer to the default of C4, and that granting the motion and proceeding to trial would prejudice Plaintiff by not allowing it to conduct reasonable discovery and related motions to properly prepare to address C4’s defenses. Lastly, Plaintiff asserts that if the Court grants the motion, Plaintiff is entitled to recover fees under Code of Civil Procedure section 473(b) and (c)(1), and thus, Plaintiff requests that C4 or the attorney for C4 be ordered to pay Plaintiff legal fees and costs in an amount to be determined by the court, but not less than $1,000.

Code of Civil Procedure section 473(b) states, in relevant part: “The court may, upon any 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.” (Code Civ. Proc. § 473(b).)

Under Code of Civil Procedure section 473(b), a motion to set aside must be brought within six months after the order or proceeding was taken. “In order to qualify for relief under section 473, the moving party must act diligently in seeking relief . . .” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 234.) The party seeking relief bears the burden of proof in establishing a right to relief. (Hopkins & Carley v. Gens (2011) 200 Cal. App.4th 1401, 1410.) “The moving party has a double burden: He must show a satisfactory excuse for his default, and he must show diligence in making the motion after discovery of the default. [Citation.]” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420, internal quotations omitted.) Whether the moving party has successfully carried this burden is a question entrusted to the discretion of the trial court and its ruling will not be disturbed in the absence of a demonstrated abuse of that discretion. (Hopkins & Carley v. Gens (2011) 200 Cal. App. 4th 1401, 1410.)

‘[A] party who seeks relief under [section 473] must make a showing that due to some mistake, either of fact or of law, of himself [or herself] or of his [or her] counsel, or through some inadvertence, surprise or neglect which may properly be considered excusable, the judgment or order from which he [or she] seeks relief should be reversed. In other words, a burden is imposed upon the party seeking relief to show why he [or she] is entitled to it, and the assumption of this burden necessarily requires the production of evidence. [Citations.]’ ” (Kendall v. Barker (1988) 197 Cal.App.3d 619, 623-624.) In a motion under section 473, the initial burden is on the moving party to prove inadvertence, surprise, excusable neglect or mistake by a “preponderance of the evidence.” (Id. at p. 624.)

Here, C4 states in conclusory and vague fashion that the motion is filed within a reasonable period of time, not exceeding six months after entry of the default. There is no evidence to support this assertion.

As noted by Plaintiff, the Court’s Minute Order entering default is dated March 10, 2022. (Ex. 1 to Motion, ROA 69.) A Notice of Ruling with a copy of the tentative ruling was filed by Plaintiff on March 15, 2022, and was served on C4’s counsel on March 15, 2022. (Ex. 2 to Motion, ROA 68.) The instant motion for relief was filed on August 8, 2023, nearly one year and five months after the entry of order entering default as to C4.

C4’s Counsel states that since May 25, 2022 when C4 was revived and after RD withdrew its motion to strike, “I have been mistakenly proceeding as though the answer filed by C4 was active in this case.” (Declaration of Brian Carlin, ¶ 6, ROA 133.) This does not show diligence in bringing the instant motion although it appears that C4 was aware of entry of default against it as early as March 10, 2022, or at least by March 15, 2022.

Based on the foregoing, the instant motion which is brought pursuant to Code of Civil Procedure section 473(b) was not timely brought and C4 fails to show that it acted diligently in making the motion after knowing of the default.

Additionally, that C4’s Counsel has been “mistakenly proceeding as though the answer filed by C4 was active in this case,” after default was entered against C4 does not show that the default was entered as a result of mistake, inadvertence, surprise or excusable neglect as required to support relief from default under Code of Civil Procedure section 473(b). Thus, C4 fails to meet its burden to show that it is entitled to relief under Section 473(b).

C4 fails to present any argument or evidence to support vacating default on equitable grounds.

Further, C4 vaguely asserts in the memorandum that the attached declaration describes that the service of the Summons was improper, depriving the court of jurisdiction as to the defendant, but no authority is cited, and the Declaration of Brian C. Carlin in support of the instant motion to vacate default contains no facts concerning the service of Summons. (See ROA 133.) The Court may treat an argument as waived where no legal authority supporting the argument is cited. (Hood v. Gonzales (2019) 43 Cal.App.5th 57, 73-74.) The court is not required to examine undeveloped claims or to supply arguments for the litigants. (See Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984-985; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 546; see also Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [holding that failure to make reasoned legal argument forfeits claim].)

Accordingly, the Court DENIES C4’s Motion to Vacate Default.

C4’s Request for Judicial Notice (ROA 135)

C4 requests that the Court judicially notice two documents: (1) “California Secretary of State Website Business Filings Indicating that C4 Distribution Co., LLC showing inactive status;” and (2) “California Secretary of State Website Business Filing Indicating that C4 Distribution Co., LLC was revived on May 25, 2022.”

The request is DENIED as the materials are not relevant to a determination of the motion. A court may deny a request for judicial notice on the ground that the material is not relevant to the determination of the issues. (State Compensation Ins. Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 442-443.)

Plaintiff to give notice.

Motions to be Relieved

Brian C. Carlin and Law Office of Brian C. Carlin, move for an order relieving them as Counsel of Record for Defendants, C4 Distribution Co., LLC and Golden Systems, LLC.

The Court, however, notes that on March 10, 2022, the Court granted Plaintiff, Abstrax Labs, Inc.’s motion to strike the Answers, ordered the Answers to Complaint filed by C4 and Golden Systems stricken, and ordered the defaults of C4 and Golden Systems entered as of the date of the Order. (ROA 69.)

In general, “after a plaintiff has obtained a default, the defendant no longer has any right to participate in the case.” (Nickell v. Matlock (2012) 206 Cal.App.4th 934, 941–942.) The defendant cannot participate in any other hearings or conferences with the court. (Harbour Vista, LLC v. HSBC Mortgage Services Inc. (2011) 201 Cal.App.4th 1496, 1504–1505.)

“The entry of a default terminates a defendant’s rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered. [Citations.] ‘A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff’s right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.’ [Citation.]” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal. App. 3d 381, 385-386.)

As defaults were entered against C4 and Golden Systems on March 10, 2022, and they have not been set aside, these defendants no longer have any right to participate in the case. While the motion to be relieved as counsel concerns counsel’s representation of these defendants, it appears to the Court that permitting such a motion under these circumstances would not be appropriate as the defaulted defendant could not oppose such a motion, should it wish to, until after the default was set aside. Given the defaulted status of these defendants, granting the motion to be relieved as counsel would also be a moot act. The Court declines to rule on the motions.

Moving Counsel to give notice.