Nasif Hicks Harris & Co LLP vs J'Aimee Oxton et al

Case Number

25CV01487

Case Type

Hearing Date / Time

Mon, 10/13/2025 - 10:00

Nature of Proceedings

Debtor's Examination; Motion: Set Aside Default

Tentative Ruling

Nasif, Hicks, Harris & Co., LLP v. J’Aimee Oxton, et al.  

Case No. 25CV01487

Hearing Date: October 13, 2025                                             

HEARING:              Motion To Set Aside Default And Default Judgment; Compel Arbitration And Stay (Or Dismiss) Action

ATTORNEYS:        For Plaintiff Nasif, Hicks, Harris & Co., LLP: Nick I. Iezza, Conrad J. Schmidt, Spiwak & Iezza, LLP

                                    For Defendant John Horton: Self Represented

TENTATIVE RULING:

The motion of defendant John Horton to set aside default and default judgment, to compel arbitration, and to stay or dismiss action is granted. The default of defendant John Horton entered on July 1, 2025, the court judgment by default entered on July 21, 2025, and the debtor’s examination of defendant presently set for October 13, 2025, are each vacated and set aside. The parties shall submit the dispute to binding arbitration as provided herein. The action shall be stayed pending completion of arbitration. The parties are further ordered to appear at a case management conference on April 13, 2026, at which the parties shall be prepared to inform the court of the status of the arbitration ordered herein, including whether the stay may be lifted.

Background:

On March 10, 2025, plaintiff Nasif, Hicks, Harris & Co., LLP, filed a complaint against defendants J’Aimee Oxton (Oxton) and John Horton (Horton) (collectively, defendants), alleging six causes of action: (1) breach of agreement; (2) goods sold and delivered; (3) reasonable value; (4) account stated; (5) open book account; and (6) unjust enrichment.

In the complaint, plaintiff alleges that on December 2, 2022, plaintiff and defendants entered into an agreement pursuant to which plaintiff agreed to perform forensic accounting services for defendants in exchange for compensation at hourly rates ranging from $108 to $640. (Compl., ¶¶ 10-11 & Exh. 1.) Plaintiff provided the forensic accounting services to defendants. (Compl., ¶ 13.) Defendants breached the agreement by failing to pay the amount due of $97,185, which plaintiff alleges is the reasonable value of the services provided by plaintiff pursuant to the agreement. (Compl., ¶¶ 13-14, 17-18, 20-21, 23-24 & 26-27.)

Court records reflect that on March 20, 2025, plaintiff filed a request for dismissal of this action, without prejudice, as to Oxton.

On July 1, 2025, the default of Horton was entered as requested by plaintiff.

On July 14, 2025, plaintiff filed an application for a court judgment on default (the application) as to Horton, which was supported by a declaration of Rachelle Barnier, and separate declarations regarding plaintiff’s calculation of interest and attorney’s fees.

On July 21, 2025, the court entered a judgment by default (the default judgment) in favor of plaintiff and against Horton, in the amount of $122,944.24. Plaintiff filed a notice of entry of the default judgment on July 24.

On July 25, 2025, the court ordered Horton to appear for a debtor’s examination on October 13.

On August 29, 2025, Horton filed a motion for an order setting aside the default and default judgment pursuant to Code of Civil Procedure section 473, subdivision (b). In that motion, Horton also requests an order compelling this matter to arbitration, and staying the proceedings pending that arbitration.

The motion is supported by a declaration of Horton, who states that Oxton is Horton’s attorney. (Horton Decl., ¶ 2.) Horton further states that in December 2022, he and Oxton entered into an “Engagement Agreement”, a copy of which is attached to the Horton declaration as exhibit A. (Horton Decl., ¶ 2.) The “Engagement Agreement” attached to the Horton declaration is dated December 2, 2022, was ostensibly transmitted by plaintiff to Oxton and Horton, and references a matter described as “Marriage of Horton”. (Horton Decl., Exh. A at pdf p. 8.) In the Engagement Agreement, plaintiff states that “[t]his letter will confirm our discussions and the engagement of [plaintiff] to assist in the representation in the [Marriage of Horton]”, and that defendants have retained plaintiff “to perform forensic accounting services....” (Ibid.)

Horton asserts that the Engagement Agreement includes arbitration provisions. (Horton Decl., ¶ 1.) Though Horton asserts that these arbitration provisions are “highlighted”, the court’s copy of the Engagement Agreement submitted with the Horton declaration does not include any “highlights”. (See Horton Decl., Exh. A.)

Horton asserts that he relied on Oxton as his attorney who, according to Horton, was erroneously named in this case. (Horton Decl., ¶ 5.) Horton states that in June and July 2025, Oxton “required emergency surgery and suffered complications that left her unable to work for 18 days”, and that Horton “waited for [Oxton’s] response, believing her involvement was necessary since she was also named.” (Horton Decl., ¶ 5.)

Horton further asserts that he communicated with plaintiff “regarding arbitration and payments via numerous email exchanges from December 2024 through May 2025”, copies of which are purportedly attached to the Horton Declaration. (Horton Decl., ¶ 6 & Exhs. B-C.) Horton contends that these communications evidence Horton’s intent to arbitrate. (Horton Decl., ¶ 6.)

Horton declares that he intended to defend himself and to exercise his contractual right to arbitrate, and that the default and default judgment were entered against Horton due to “mistake, inadvertence, and excusable neglect” in, among other things, relying on his attorney Oxton. (Horton Decl., ¶¶ 3-4.)

On October 2, 2025, plaintiff filed an opposition to the motion, in which plaintiff expressly states that plaintiff “does not oppose [Horton’s] motion that the default and judgment should be set aside” and “does not oppose [Horton’s] motion to compel arbitration.” (Opp. at p. 2, ll. 17-20.) Plaintiff also requests that the court stay these proceedings pending completion of an arbitration by the parties. (Id. at ll. 14-15.)

Analysis:

A court has discretion under Code of Civil Procedure section 473, subdivision (b), to “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.” (Code Civ. Proc., § 473, subd. (b); Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302 [the statute “provides for both discretionary and mandatory relief”].) An application for relief under section 473, subdivision (b), must 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).)

The motion, which was made less than two months after entry of the default, is timely under Code of Civil Procedure section 473. Information appearing in the Horton declaration is also sufficient to show that “a reasonably prudent person in similar circumstances might have made the same error.” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423.) There is no information to show that any inadvertence by Horton was inexcusable. (Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1146-1147.) Plaintiff also expressly does not oppose the motion, and appears to concede that there exists sufficient grounds to set aside the default of Horton and the default judgment.

Though the motion, for all reasons discussed above, states sufficient grounds upon which the court may set aside the default and default judgment, the motion is not accompanied by a copy of an answer or other responsive pleading which Horton proposes to file in this action. (See Code Civ. Proc., § 473, subd. (b).) Though the failure to submit a copy of a proposed responsive pleading generally requires that the motion be denied, the motion also includes, as noted above, a request for an order compelling the arbitration of plaintiff’s dispute and imposing a stay of these proceedings, which plaintiff expressly does not oppose as further discussed above.

Under the circumstances present here, also considering that plaintiff expressly does not oppose the motion and also requests that the court stay these proceedings pending the completion of arbitration, the court will deem the motion and the opposition to the motion as a stipulation by the parties to the entry of an order compelling this matter to arbitration and staying the action.

For all reasons discussed above, the court will grant the motion and order that the default of Horton and default judgment be set aside. The court will also vacate the debtor’s examination presently scheduled for October 13, 2025. Further, the court will order the parties to submit their dispute to binding arbitration, and that these proceedings be stayed pending completion of that arbitration. The court will also require the parties to appear at a future case management conference regarding the status of the arbitration ordered herein.