Lawzilla Additional Information:
Per the Los Angeles court records we believe the plaintiff being ordered to pay $11,250 is represented by attorney HAROLD GREENBERG from the LAW FIRM OF HAROLD GREENBERG

Case Number: BC653531 Hearing Date: March 16, 2018 Dept: 32

Laura Shapiro,

Plaintiff,

v.

Morad Ben Neman, et al.,

Defendants.

Case No.: BC653531

Hearing Date: March 16, 2017

[TENTATIVE] order RE:

Motion for relief from order sustaining demurrer without leave

BACKGROUND

This action is brought by seventy-five individual Plaintiffs against eighteen Defendants related to a property located on East Pico Boulevard in Los Angeles. Plaintiffs allege claims arising out of the warranty of habitability, negligence, and various statutory violations.

On December 4, 2017, Defendants Morad Ben Neman, Sky High Investments Company, LLC, Simon Neman, Neman Real Estate Investments, and MBN Real Estate Investments, LLC (“Defendants”) unopposed demurrer to the first amended complaint was sustained without leave to amend.

REQUEST FOR JUDICIAL NOTICE/EVIDENTIARY OBJECTIONS

Plaintiffs’ request for judicial notice is GRANTED. However, the Court declines to take judicial notice of the truth of the matters stated therein.

Defendants’ request for judicial notice is GRANTED.

Defendants’ evidentiary objections are OVERRULED.

DISCUSSION

“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 made within a reasonable time, in no case exceeding six months. . . .” (CCP § 473(b).)

Pursuant to CCP § 473(b)’s mandatory provision, “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.”

Plaintiffs move to set aside the order sustaining the demurrer to the FAC without leave to amend. As set forth in the motion, Plaintiffs’ counsel, the Greenberg Firm (“Greenberg”), associated with Hess, Hess, & Herrera Law Firm (“HHH”) for additional assistance in the case. Greenberg purportedly delegated responsibility for all pleadings, motions, and discovery to HHH. (Ghavidal Decl. ¶ 26.) Despite reassurances that HHH was handling all matters and would not miss any deadlines, HHH failed to file an opposition to the demurrer. (Id. ¶¶ 41–42.) In essence, Greenberg attributes blame for the failure to oppose the demurrer to HHH.

In opposition, Plaintiffs contend that the motion should not be granted because the adverse ruling was not caused by attorney error, i.e. the demurrer would have been sustained regardless. Plaintiffs also argue that the neglect described in the motion is inexcusable. Nevertheless, the Court finds that the circumstances described in the motion justify the setting aside of the order sustaining demurrer without leave to amend. It is well established “that it is the policy of the law to bring about a trial on the merits whenever possible, so that any doubts which may exist should be resolved in favor of the [motion to set aside default], to the end of securing to a litigant his day in court and a trial upon the merits. . . . Even in a case where the showing under section 473 is not strong, or where there is any doubt as to setting aside of a default, such doubt should be resolved in favor of the application.” (Rosenthal v. Garner (1983) 142 Cal. App. 3d 891, 898.) If Plaintiffs had opposed the demurrer, at the very least, Plaintiffs could have secured an additional opportunity to amend the complaint. While the Court agrees that Greenberg could have acted more diligently, to allow the order sustaining the demurrer to stand would cause undue harm to the Plaintiffs. Accordingly, the motion is GRANTED.

In opposition, Defendants request fees and costs in the sum of $143,709.00 as a condition of granting the motion. The Court finds this amount to be plainly unreasonable. Defendants apparently seek fees and costs for the entire litigation. At most, Defendants would be entitled to fees and costs incurred as a result of Plaintiffs’ failure to oppose the demurrer, and fees and costs associated with opposing this motion. The court finds defendants’ attorney’s hourly rate of $450 per hour to be reasonable and well within the market for litigation attorneys of defendants’ attorney’s experience. Defendants are entitled to reimbursement for 25 hours of their attorney fees. Accordingly, the request for fees and costs is GRANTED in the amount of $11,250.00.