Novah Kionisala v. John Chapman, etc., et al

Case Number

23CV04827

Case Type

Hearing Date / Time

Wed, 02/14/2024 - 10:00

Nature of Proceedings

1) Demurrer of Defendant John Chapman to Complaint; 2) Motion of Defendant John Chapman to Strike Portions of Complaint; and, 3) Motion of Defendant Josephine Chapman to Set Aside Default and to Quash Service of Summons

Tentative Ruling

For Plaintiff Novah Kionisala: Jonathan McKee, McKee Law Firm                               

For Defendants John Chapman and Josephine Varga: Kristi D. Rothchild, Julian Alwill, Rothschild & Alwill, APC

  

RULING

(1) For the reasons set forth herein, the general demurrer of Defendant John Chapman is sustained, with leave to amend, as to the first and third causes of action of the complaint, and the special demurrer is sustained, with leave to amend, as to each cause of action of the complaint.

(2) For the reasons set forth herein, the motion of Defendant Josephine Varga to set aside default is granted. The default entered on January 4, 2024, is ordered set aside and vacated.

(3) Plaintiff shall file and serve a first amended complaint on or before February 22, 2024, and the Defendants shall file responsive pleadings to the first amended complaint as otherwise provided by law. If Plaintiff fails timely to file and serve a first amended complaint (and otherwise fails to file and serve a first amended complaint prior to any responsive filing by Defendant Varga), Defendant Varga shall file and serve her demurrer and motion to strike, in substantially the same form as included with the motion to set aside default, on or before February 29, 2024, and no default, if otherwise permissible, shall be entered as to Varga on or before that date.

Background

(1) Allegations of Complaint

As alleged in the complaint:

Plaintiff Novah Kionisala is a registered certified nursing assistant. (Complaint, ¶ 2.) Kionisala was employed as a personal attendant for the care of decedent Charles Anthony Chapman (Decedent) starting on September 26, 2021. (Complaint, ¶¶ 3, 8.) Kionisala was one of four personal care attendants who provided around the clock care for Decedent. (Complaint, ¶ 4.)

Kionisala kept account records of time schedules while working for Decedent and kept the original paychecks signed by Decedent. (Complaint, ¶¶ 9, 10.) Kionisala received a regular hourly rate of pay for all hours she worked for Decedent. (Complaint, ¶ 11.) Kionisala was released from her employment by Decedent on January 2, 2023. (Complaint, ¶ 12.)

Decedent died after Kionisala left his employment. (Complaint, ¶ 7.) After Decedent’s death, Defendants John Chapman (Chapman) and Josephine Varga (Varga) became co-trustees of the Chapman Living Trust (the Trust). (Complaint, ¶¶ 5, 6.)

Kionisala later learned that she should have received overtime pay for all the overtime hours she worked beyond a nine-hour shift. (Complaint, ¶ 13.) Kionisala then filed a wage claim with the Labor Commission in the City of Santa Barbara as case number WC-CM-933991. (Ibid.)

On May 5, 2023, the Labor Commission issued a “Notice of Claim and Conference Remote” for May 18. (Defendants’ Request for Judicial Notice in Support of Demurrer [DRJN], exhibit 1.)

At the Labor Commission hearing on August 30, 2023, Defendants presented a printed, digital spreadsheet document as evidence in support of their proposed amount of monetary payment due Kionisala for unpaid overtime hours. (Complaint, ¶ 16.) The spreadsheet misrepresents the actual overtime hours scheduled and worked by Kionisala during specific pay periods. (Complaint, ¶ 17.) Defendants continue to insist that the spreadsheet is true and accurate via email communications through their attorney. (Complaint, ¶ 18.) The spreadsheet falsely represents that Kionisala worked on particular days of the week, for example Wednesdays. (Complaint, ¶ 19.) Defendants know that the representation is false, for example, because the details on paycheck number 2532 do not match the data in the spreadsheet. (Complaint, ¶ 20.) The purpose of the false spreadsheet was to intentionally mislead the Labor Commission into thinking that Kionisala gave over-estimated wages due and to destroy her credibility at the Labor Commission hearing. (Complaint, ¶ 21.) The Labor Commission relied on Defendants’ misrepresentations by offering a final payment to Kionisala that reduced the original overtime calculations to reflect the misrepresented overtime hours. (Complaint, ¶ 25.)

On November 1, 2023, the Labor Commission issued its notice that it had completed its investigation of Kionisala’s complaint, that no further office is contemplated by the Labor Commission, and that the Labor Commission declines to pursue the claim due to the complexity of the case. (DRJN, exhibit 2.)

(2) Procedural History

On October 31, 2023, Kionisala filed her complaint in this action against Chapman and Varga, as co-trustees, and against the estate of the Decedent. (Complaint, ¶¶ 14, 32, 45.) The complaint asserts three causes of action: (1) fraud; (2) Labor Code section 1197.1 for overtime hours; and (3) intentional infliction of emotional distress.

According to the proof of service filed by Plaintiff on November 28, 2023, Varga was served by personal service at 9:36 p.m. on November 16, 2023, at 63 Good Friday Road, in Boulder, Colorado, by Steven Guiling, not a California registered process server.

According to Varga, Varga was at home all day and evening with her husband, Randall Varga, and her son, Spencer Varga. (Josephine Varga decl., ¶ 6.) No one came to her house that evening. (Ibid.) Varga never met Steven Guiling and she was never served with any documents related to this case. (Id., ¶ 7.) She was at home on the date and time asserted in the proof of service stating that she was personally served, and no such service took place. (Ibid.) No documents had been left at the door, in the mailbox, or anywhere else on her property. (Id., ¶ 8.) Randall Varga and Spencer Varga provide declarations confirming Josephine Varga’s version of events on November 16, 2023, at their home. (Randall Varga decl., ¶¶ 3-6; Spencer Varga decl., ¶¶ 3-6.) Randall Varga in particular states that pressing the doorbell activates a video camera and that the doorbell camera was not activated on November 16 between 9:00 p.m. and 10:00 p.m. (Randall Varga decl., ¶ 6.)

According to counsel for Defendants, attorney Kristi D. Rothschild, counsel were monitoring the Court’s online docket for this case during the month of November. (Rothschild decl. re Motion to Set Aside, ¶ 4.) On November 30, 2023, Rothschild’s assistant identified the proof of service filed asserting personal service on Varga. (Ibid.) Varga stated that she had not in fact been served. (Ibid.; Josephine Varga decl., ¶ 8.) On November 30, Rothschild sent an email to counsel for Plaintiff, attorney Jonathan McKee, stating that Rothschild had obtained a copy of the proof of service and explaining that no process server came to Varga’s home as asserted in the proof of service. (Rothschild decl., ¶ 4 & exhibit B.) The email asked counsel to check the facts and stated an intention to file a motion to quash because Varga had not been served. (Ibid.)

On December 4, 2023, McKee responded to the November 30 email. (Rothschild decl. re Motion to Set Aside, ¶ 5 & exhibit C.) The email includes the statement: “This email informs you that a certified USPS mailing is being sent to Josephine Varga at the address listed on the Proof of Service; Complaint; and Summons. [¶] Certainly, if it is your intent to represent the Chapman Estate, Ms. Varga, and Mr. Chapman, then it might be prudent of you to accept service of Summons and Complain on their behalf. [¶] Please let us know in kindly reply to this email as your acceptance of service via email.” (Id., exhibit C.)

On December 5, 2023, Rothschild responded to the December 4 email. (Rothschild decl. re Motion to Set Aside, ¶ 6 & exhibit D.) Rothschild responded that Varga was not avoiding service, but that she had not been served. (Id., exhibit D.) Rothschild did not agree to accept service and stated that the request strongly indicates that McKee was aware that service had not been effected. (Ibid.) The email concluded with a demand that the proof of service be withdrawn. (Ibid.)

On December 13, 2023, Varga received documents by certified U.S. mail, return receipt requested, with a mail date of December 4, 2023, including a summons, complaint, and the filed proof of service. (Josephine Varga decl., ¶ 9.) Varga advised Rothschild of the receipt of these documents. (Rothschild decl. re Motion to Set Aside, ¶ 7.) Rothschild understood this as a representation that McKee was undertaking to serve Varga correctly and that the personal service was not effective. (Ibid.)

On December 14, 2023, Varga received a second package of the same document plus a Notice and Acknowledgement of Receipt dated December 11, 2023. (Varga decl., ¶ 9; Rothschild decl. re Motion to Set Aside, ¶ 8 & exhibit E.) Varga signed the Notice of Acknowledgement on the date it was received, December 14, and sent it to her counsel. (Varga decl., ¶ 9.)

On January 2, 2024, Rothschild provided the Notice and Acknowledgement, executed by Varga on December 14, to McKee by email. (Rothschild decl. re Motion to Set Aside, ¶ 9 & exhibit F.) The email states that Varga had now been served by certified mail but that the earlier filed proof of service needed to be withdrawn because it was false. (Id., exhibit F.) The email also requested a meet and confer meeting to address deficiencies asserted by Defendants in the complaint to be otherwise addressed by demurrer and motion to strike. (Ibid.)

On January 4, 2024, Plaintiff requested, and the Court entered, default as to Varga. The request for entry of default was signed by McKee on January 3.

On January 5, 2024, Varga reported to Rothschild that Varga had received a request for entry of default mailed by McKee on January 3. (Rothschild decl. re Motion to Set Aside, ¶ 10.) However, the default did not appear in Court’s online docket at that time. (Id., ¶ 12.) On January 9, without having any contact from McKee, Rothschild attempted to file a demurrer and motion to strike. (Ibid.) The filing of those documents was rejected by the Court on January 10 because of the default entered on January 4. (Ibid. & exhibit L.)

On January 10, 2024, Defendant Chapman filed his demurrer and motion to strike.

On January 12, 2024, Defendant Varga filed her motion to set aside default and motion to quash service of summons.

All motions are opposed by Plaintiff.

Analysis

(1) Requests for Judicial Notice

Defendants request that the Court take notice of: (DRJN, exhibit 1) Plaintiff’s claim filed with the California Labor Commissioner; and (exhibit 2) the Labor Commissioner’s Notice of Investigation Completed. The Court will grant these requests for judicial notice. (See Evid. Code, § 452, subd. (c).) Judicial notice does not extend to the truth of factual matters set forth in these documents. (See Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)

On February 6, 2024, Kionisala filed a supplemental request that the Court take judicial notice pursuant to Evidence Code section 452, subdivision (h), of an email between Joe Horton and McKee regarding notes as to the service of process here at issue. Putting aside the substantial evidentiary issues with the email, the email is not a proper subject for judicial notice.

“Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: [¶] … [¶] (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) “ ‘Judicial notice may not be taken of any matter unless authorized or required by law.’ (Evid. Code, § 450.) Matters that are subject to judicial notice are listed in Evidence Code sections 451 and 452. A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. [Citation.] Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.) In opposition, Varga has presented evidence directly disputing the truth of the matters set forth in the email. The truth of the matters set forth in the email is reasonably disputable; the existence of the email is otherwise irrelevant. Consequently, Kionisala’s supplemental request for judicial notice will be denied.

(2) Demurrer and Motion to Strike of Chapman

“ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. ... We also consider matters which may be judicially noticed.’ ... Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Mathews v. Becerra (2019) 8 Cal.5th 756, 768, internal quotation marks and citations omitted.)

Chapman generally and specially demurs to each of the causes of action of the complaint.

As an initial argument, Plaintiff asserts that there was no pre-filing meet and confer as required by Code of Civil Procedure section 430.41. The declaration presented by Chapman sufficiently demonstrates an effort to have a meet and confer conference. The Court will address the merits of the demurrer and motion to strike.

With respect to the first (fraud) and third (intentional infliction of emotional distress) causes of action, Chapman argues that these claims are precluded by the litigation privilege of Civil Code section 47, subdivision (b).

“A privileged publication or broadcast is one made: [¶] … [¶] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure ….” (Civ. Code, § 47, subd. (b).)

Chapman argues that the statements for which Kionisala seeks to impose liability were communications made in the course of an official proceeding, namely, made to and in the course of a Labor Commission investigation and hearing. Kionisala does not dispute the general applicability of the litigation privilege to these proceedings, but argues that Plaintiff alleges conduct rather than communication. (Demurrer Opposition, at p. 7.)

“ ‘Because the litigation privilege protects only publications and communications, a “threshold issue in determining the applicability” of the privilege is whether the Defendant’s conduct was communicative or noncommunicative. [Citation.] The distinction between communicative and noncommunicative conduct hinges on the gravamen of the action. [Citations.] That is, the key in determining whether the privilege applies is whether the injury allegedly resulted from an act that was communicative in its essential nature.’ [Citation.]” (Aghaian v. Minassian (2020) 59 Cal.App.5th 447, 457.)

Kionisala’s first cause of action is for fraud. “The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) The element of misrepresentation implies communication: “Fraud can be perpetrated by any means of communication intended to reach and influence the recipient.” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 175.) Kionisala alleges that it is the false communication to the Labor Commissioner of the facts set forth in the spreadsheet that constitutes the misrepresentation. (Complaint, ¶¶ 16-19.) It is that communication which Kionisala alleges misled the Labor Commissioner. (Complaint, ¶¶ 21, 25.) The communicative conduct is within the scope of the litigation privilege.

Kionisala’s third cause of action is for intentional infliction of emotional distress. “A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the Defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the Plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the Defendant's outrageous conduct.’ [Citations.] A Defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.] And the Defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051, internal quotation marks omitted.)

The outrageous conduct alleged by Kionisala is the misrepresentation of the truth by Defendants. (Complaint, ¶ 49.) Again, it is communicative conduct that is the source of Plaintiff’s claim. This communicative conduct is within the scope of the litigation privilege.

Kionisala also cites to an exception to the litigation privilege (Demurrer Opposition, at p. 8): “This subdivision does not make privileged any communication made in furtherance of an act of intentional destruction or alteration of physical evidence undertaken for the purpose of depriving a party to litigation of the use of that evidence, whether or not the content of the communication is the subject of a subsequent publication or broadcast which is privileged pursuant to this section. As used in this paragraph, ‘physical evidence’ means evidence specified in Section 250 of the Evidence Code or evidence that is property of any type specified in Chapter 14 (commencing with Section 2031.010) of Title 4 of Part 4 of the Code of Civil Procedure.” (Civ. Code, § 47, subd. (b)(2).)

Kionisala alleges that Defendants presented a false spreadsheet document which is a “purely secondary source of data.” (Complaint, ¶¶ 21-22, 48.) From this, Kionisala argues that the spreadsheet is “tampered evidence” within the above exception to the litigation privilege.

“As the express language of the statute provides, the spoliation exception to the litigation privilege applies only where the alleged alteration or destruction is intended to deprive a party of the use of the evidence (Laborde v. Aronson (2001) 92 Cal.App.4th 459, 464 [forgery in document does not deprive other party of its use]), and where a communication furthers the act of spoliation.” (Davis v. Ross (2019) 39 Cal.App.5th 627, 631.) Here, there are no allegations that any physical evidence was altered so as to deprive Plaintiff of the use of any evidence. The allegations are that the Defendants themselves created a false summary of other evidence and presented that false summary as evidence in the Labor Commission hearing. Plaintiff alleges that this evidence is simply false and falsified. However, “[t]he privilege is accorded not only to parties but to witnesses, even where their testimony is allegedly perjured and malicious.” (Kachig v. Boothe (1971) 22 Cal.App.3d 626, 641; accord, Silberg v. Anderson (1990) 50 Cal.3d 205, 214; Ribas v. Clark (1985) 38 Cal.3d 355, 365.) There are no allegations that presentation of the spreadsheet in any way deprived Plaintiff of the use of Plaintiff’s underlying primary evidence.

The litigation privilege bars all tort claims except for malicious prosecution, including fraud and intentional infliction of emotional distress. (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1242; Silberg v. Anderson, supra, 50 Cal.3d at p. 215.) Chapman demonstrates that the litigation privilege applies to bar the first and third causes of action. Kionisala has not shown that an exception applies. The general demurrer will therefore be sustained to the first and third causes of action.

In addition to this issue as to the first and third causes of action, Chapman argues that this Court does not have jurisdiction as to all causes of action because Kionisala has not alleged a probate claim. “An action may not be commenced against a decedent’s personal representative on a cause of action against the decedent unless a claim is first filed as provided in this part and the claim is rejected in whole or in part.” (Prob. Code, § 9351.)

In opposition, Kionisala argues that she was employed by the Trust and no creditor claim is required. “If there is no proceeding to administer the probate estate of the deceased settlor, and if the trustee does not file a proposed notice to creditors pursuant to Section 19003 and does not publish notice to creditors pursuant to Chapter 3 (commencing with Section 19040), then the liability of the trust to any creditor of the deceased settlor shall be as otherwise provided by law.” (Prob. Code, § 19008.) Kionisala states that if an amendment is necessary to change the title from the estate to the trust, then Kionisala requests leave to do so. (Demurrer Opposition, at p. 6.)

With respect to the second cause of action, Kionisala alleges: “Plaintiff brings this Second Cause of Action for the violation of [California] Labor Codes against the Estate of Mr. Charles Anthony Chapman and the Individual co-trustees of the Chapman Living Trust; Josephine Varga and John Chapman.” (Complaint, ¶ 32.)

At the same time, Kionisala asserts that “Defendants are being sued in both of their capacities, as Individuals and as co-trustees.” (Demurrer Opposition, at p. 11.)

“Unless otherwise provided in the contract or in this chapter, a trustee is not personally liable on a contract properly entered into in the trustee’s fiduciary capacity in the course of administration of the trust unless the trustee fails to reveal the trustee’s representative capacity or identify the trust in the contract.” (Prob. Code, § 18000, subd. (a).) “A trustee is personally liable for obligations arising from ownership or control of trust property only if the trustee is personally at fault.” (Prob. Code, § 18001.)

Based upon the allegations of the complaint and the concessions of Plaintiff that the complaint does not accurately allege the capacity or capacities by which Defendants are being sued, the complaint is admittedly at least uncertain. The Court will therefore sustain the special demurrer to each of the causes of action of the complaint.

This is a demurrer to Plaintiff’s original complaint. While it does not appear likely that Plaintiff can truthfully amend as to the first and third causes of action, because the Court will grant leave to amend to address uncertainty issues, the Court will grant leave to amend as to the entire complaint to allow Plaintiff to allege her best case.

Based upon this disposition, the Court does not need to address Chapman’s alternative grounds for demurrer. Because the demurrer is being sustained as to the entire complaint, Chapman’s motion to strike portions of the complaint is moot.

(3) Motion to Set Aside Default and Quash Service of Summons

The Court entered the default against Varga, an individual, as co-trustee of the Chapman Living trust, on January 4, 2024. Although the request document includes numbers filling in spaces under the title “Judgment to be entered” and under the title “Memorandum of costs,” the request made to the Court was only for entry of default, not the entry of a judgment. (Request for Entry of Default, ¶ 1.) Thus, only default, and not a default judgment, was entered. Varga now moves to set aside this default.

“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, subd. (b).)

Varga has accompanied the motion with a proposed demurrer and motion to strike. (Rothschild decl. re Motion to Set Aside, ¶ 11 & exhibits H, I.)

There is a factual dispute between the parties as to whether service was actually effected on November 16, 2023, as set forth in the proof of service filed on November 28. The proof of service states only that personal service was accomplished on November 16, 2023, at 9:36 p.m., at the address in Boulder, Colorado. No details of the service were given. (As noted above, the Court does not consider the late-filed document for which judicial notice was requested.) The proof of service states that the person serving process was not a California registered process server, and so the proof of service is not entitled to the presumption of Evidence Code section 647. Against this evidence, Varga, together with her husband and son, each declare under penalty of perjury that no person came to serve process on or about that time and place and did not leave the summons, complaint, or other Court documents. In response to this motion, Kionisala does not present a declaration from the person asserting that process was served, but merely states that the Defendants are biased towards their own self-interest and that, if necessary, Kionisala would produce the process server as a witness at trial. Indeed, Kionisala presents only argument and no evidence, apart from the filed proof of service, in support of the opposition.

The Court does not need to resolve the underlying factual question of whether service actually was accomplished on November 16. It is sufficient to note that Defendants have presented substantial evidence demonstrating that service did not take place so that the dispute was squarely presented to counsel for Kionisala when counsel for Varga raised the issue and stated on November 30, 2023, an intention to file a motion to quash service of summons. What followed was the reasonable conduct of counsel for Varga in attempting to address the service issue in an efficient manner and the absence of conflicting communication from counsel for Kionisala.

From Varga’s perspective, if Kionisala were to have insisted that the service asserted in the proof of service were effective, then Varga would have filed a motion to quash challenging that service. Even if the Court were to find that personal service had been effected, Varga would thereby be entitled to sufficient time to respond the complaint. (See Code Civ. Proc., § 418.10, subds. (c), (d).) However, attorney McKee did not respond to attorney Rothschild by stating that Kionisala was proceeding based upon the effectiveness of the personal service as of November 16. Instead, McKee stated that the summons and complaint were being sent to Varga by certified mail and that “it might be prudent of you [attorney Rothschild] to accept service of Summons and Complain on their behalf.” (Rothschild decl. re Motion to Set Aside, exhibit C.)

These comments of attorney McKee strongly imply a recognition that service had not then been effected on Varga and that service was then being made by the alternative of service by certified mail. “A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing.” (Code Civ. Proc., § 415.40.) Varga received two different packages by mail, both by certified mail return receipt, the first with a mail date of December 4 (consistent with McKee’s email to Rothschild) and the second with a mail date of December 11 (including a notice and acknowledgement under Code Civ. Proc., § 415.30). The earliest a response would have been required pursuant to section 415.40 would have been on January 16 (service complete on December 14, plus 30 days is Saturday, January 13, with Monday, January 15, a Court holiday). Rothschild’s email of January 2, 2024, specifically identifies counsel’s understanding of service by certified mail and by return of the acknowledgement of service, and states counsel’s continued assertion of the spurious nature of the November proof of service.

After all of this, including specifically Rothschild’s email of January 2, attorney McKee nonetheless requested entry of default against Varga on January 3.

“[C]ourts and the State Bar emphasize warning and deliberate speed. The State Bar Civility Guidelines deplore the conduct of an attorney who races opposing counsel to the Courthouse to enter a default before a responsive pleading can be filed. [Citation.] Accordingly, it is now well-acknowledged that an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary’s default.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135; accord, Shapell Socal Rental Properties, LLC v. Chico’s FAS, Inc. (2022) 85 Cal.App.5th 198, 215.)

“The term ‘surprise,’ as used in section 473, refers to ‘ “some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” ’ [Citation.]” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611.) Thus, separate and apart from the unresolved and disputed issue of whether personal service was effected in November, the taking of Varga’s default without providing notice of such intent while knowing that Varga believed service to be effected by the later certified mail constitutes surprise within the meaning of section 473.

“When the party in default moves promptly for relief, and the party opposing the motion will not suffer prejudice if relief is granted, ‘ “very slight” ’ evidence is necessary to have a default set aside.” (Shapell Socal Rental Properties, LLC v. Chico’s FAS, Inc., supra, 85 Cal.App.5th at p. 218.) There is no prejudice if relief is granted here for a number of reasons, including that this action has just begun to be litigated with the remaining Defendant and that, having alleged no specific amount of damages in the complaint, Kionisala could not obtain a valid default judgment against Varga. (See Twine v. Compton Supermarket (1986) 179 Cal.App.3d 514, 517-518.)

Accordingly, the motion to set aside the default will be granted. Because the grounds stated above are sufficient to grant the motion, the Court need not, and does not, address Varga’s alternative bases for granting the motion.

Ordinarily, the Court would require the filing of the proposed response shortly after making this ruling, however, as discussed above, the Court will sustain Defendant Chapman’s demurrer to the complaint with leave to amend. The filing of an amended complaint in response to that ruling would make the filing of the proposed demurrer and motion to strike an idle act. Accordingly, the Court will require the filing of the proposed demurrer and motion to strike only if no amended complaint is filed and served. Instead, all parties will be required to respond to the amended complaint as otherwise provided by law.