Watts vs. Doyle

As illness could prevent a reasonably prudent person from responding to litigation, relief is appropriate; however, Plaintiff correctly notes that Defendant failed to attach a proposed Answer to her motion, as required. (Code Civ. Proc., § 473, subd. (b).) To correct this deficiency, Plaintiff proposes conditioning relief on an Answer being filed within 7 days of the hearing.

This proposal is reasonable and would result in statutory compliance, prior to default being set aside. While Plaintiff proposes only permitting 7 days for filing, this period is reasonable, given the record indicates Defendant has already prepared her Answer. (¶8-¶10 of Schueller Declaration.)

In addition to the above, Plaintiff reasonably requests the Court seek clarification from Defendant, as to her address of service and/or whether she consents to electronic service. Counsel notes some recent difficulty serving Defendant via mail, as Counsel’s most recent mail correspondence was returned to sender. (¶5 of Schueller Declaration.)

Given the reasonableness of this request, the Court adopts it and orders Plaintiff to confirm her address of service and preferred method of service.

In addition to the above, Plaintiff requests the Court condition relief on Defendant preserving all partnership books, records, and financial documents, and providing Plaintiff with access to those records and a current accounting of all partnership assets, liabilities, and transactions since January 2025, within 21 days. (Opposition: 2:12-16.)

This request is DENIED.

While Code of Civil Procedure section 473, subdivision (b) authorizes relief “upon any terms as may be just,” this “has been held to limit the conditions thus imposed to those ‘reasonably proportionate to the other party’s prejudice or expense.’” (Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1147.) “Strictly speaking this would suggest that conditions may only redress costs incurred as a result of the default.” (Id. at pp. 1147-1148.)

Here, Plaintiff’s requested relief is akin to an ultimate disposition of this action. Similar to the requested condition herein, Plaintiff’s Complaint seeks “[a] declaration that Plaintiff is entitled to inspect or copy the partnership’s books and records...” (¶E of Prayer for Relief [ROA No. 2].) Similarly, the Complaint seeks an order compelling compliance with Corporations Code section 16403. (¶B of Prayer for Relief [ROA No. 2].) Corporations Code section 16403 states: “A partnership shall provide partners and their agents and attorneys access to its books and records.” (Corp. Code, § 16403, subd. (b).)

Based on the above, Plaintiff’s requested relief would defeat the purpose of having set default aside.

Contrary to permitting Defendant to appear and defend against this action, Plaintiff requests the Court nonetheless provide the relief sought in the Complaint.

In support of her request, Plaintiff cites Reeves v. Hutson (1956) 144 Cal.App.2d 445, wherein the Court of Appeal acknowledged a trial court order, conditioning relief from default on the defendant making the books and records of its corporation available to plaintiff for inspection and restraining defendant from transferring assets. (Id. at 448-449.)

Initially, in determining whether conditions are appropriate for relief from default, “[e]ach case must be determined upon its own peculiar facts and circumstances.” (Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1148.)

Reeves was an action for “services rendered and for money had and received.” (Reeves v. Hutson (1956) 144 Cal.App.2d 445, 447-448.) Consequently, it is not clear the conditions imposed therein were case determinative, as they are in this instance.

Additionally, it is worth noting Reeves found the referenced order was not directly appealed and likely unappealable. (Reeves v. Hutson (1956) 144 Cal.App.2d 445, 449-453.) For example, the Court in Reeves explained: “Appellant first attacks the validity of the order setting aside the default made on April 28, 1950, on the ground that the supporting affidavits do not show the required inadvertence, mistake, surprise, or excusable neglect. This attack assumes that the validity of that order is reviewable on this appeal. This assumption appears to be contrary to the applicable law.” (Id. at p. 450.) The Court of Appeals went on to explain that the order setting aside default was, in their opinion, appealable. (Id. at p. 451); however, no appeal was taken therefrom. (Id. at 449.)

The Court further noted that, even “[i]f the order of April 28, 1950, was interlocutory in nature, then the order of December 4, 1951, was an order after final judgment and appealable.” (Reeves v. Hutson (1956) 144 Cal.App.2d 445, 451.) “Since it has long since become final, the issues determined by it are res judicata.” (Ibid.)

While the Court of Appeals later stated that, “whether the orders of April 28, 1950, and December 4, 1951, were or were not appealable, they were proper orders” (Id. at p. 453), this appears to be a mere acknowledgment that, regardless, at the time of that opinion the orders were final.

Based on the above, the opinion in Reeves does not clearly support the relief requested herein.

Plaintiff additionally requests the Court order Defendant to “preserve all partnership books, records, and financial documents,” however, such an order is unnecessary: “The duty to preserve relevant evidence is triggered when the party is objectively on notice that litigation is reasonably foreseeable, meaning litigation is probable and likely to arise from an incident or dispute and not a mere possibility.” (Victor Valley Union High School Dist. v. Superior Court (2023) 91 Cal.App.5th 1121, 1133.)

Lastly, Plaintiff requests the Court condition relief on the payment of $11,625.00 in attorneys’ fees.

As noted above, any conditions imposed for relief “may only redress costs incurred as a result of the default.” (Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1147-1148.) However, much of the labor identified by Plaintiff was either unnecessary or is relevant to the overall management of this case, apart from the entry of default. (¶11 of Schueller Declaration.)

For example, Plaintiff indicates that some portion of the requested time was incurred drafting the opposition to this motion; however, the motion itself was a single paragraph which Plaintiff did not substantively oppose. (Opposition: 5:10- 11.) Plaintiff, independently, chose to expand the issues in this motion, by asserting four additional requests for substantive orders within her opposition.

Similarly, Plaintiff indicates time was expended, attempting to address service issues; however, this labor is an inevitable result of the action proceeding and not, strictly speaking, a result of default having been entered.

Finally, while Plaintiff indicates some amount of labor was expended entering default and preparing a default judgment, this amount is not specified and, consequently, a more limited award is not possible.

Thus, this proposed condition is DENIED.

Clerk to give notice.

55 Bacher vs. Prasad

22-01265088 Motion for Attorney Fees

The Motion for Attorney Fees brought by Plaintiff Michael Scott Bacher dba Designer Properties is CONTIUED to 9/11/2026, at 10:00 a.m. in Department C16.

Plaintiff is ordered to submit billing records, along with a summary of the work performed, which removes all items of billing related solely to litigation against Defendants Agarwal Markarian Holdings, Inc. and Inderjit Ghusar (“Broker Defendants”). Additionally, Plaintiff is ordered to provide a Declaration, expressly addressing whether a response was received to the requests for mediation made in February, April and May of 2022.

It is undisputed the parties executed a “Buyer Representation Agreement – Exclusive” (“BRAE”), which includes an attorney fee provision. (¶3 of Knierim Declaration and Exhibit 1 thereto, at §9.)

“In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.” (Civ. Code, § 1717, subd. (a).)

“The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment.” (Civ. Code, § 1717, subd. (b)(1).) “[T]he party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.” (Ibid.)

Here, as judgment was entered against Defendants, with respect to Plaintiff’s claim for breach of the BRAE (ROA Nos. 224 and 455), Plaintiff is necessarily the prevailing party thereon.

While it is true Plaintiff dismissed his claim for breach of the implied covenant of good faith (See ROA No. 357), this claim was duplicative of the contract cause of action. (See in Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1396 and 1401; See also ¶30-¶35 of FAC [ROA No. 77].) Similarly, while Defendants pursued a Cross-Complaint against Plaintiff, which likewise included contract claims, this Cross-Complaint was ultimately dismissed. (ROA No. 215.)

Consequently, Plaintiff is “the party who recovered a greater relief in the action on the contract.” (Civ. Code, § 1717, subd. (b)(1).)

In opposing this motion, Defendants dispute Plaintiff’s compliance with a mediation provision encompassed within the agreement. The relevant contractual language states as follows: “If, for any dispute or claim to which this paragraph applies, any party (i) commences an action without first attempting to

resolve the matter through mediation, or (ii) before commencement of an action, refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney’s fees....” (¶3 of Knierim Declaration and Exhibit 1 thereto, at §11(A).)

To establish compliance, Plaintiff attaches a Demand for Mediation made on December 14, 2021. (¶6 of Knierim Declaration and Exhibit 4 thereto.) The evidence indicates Defense Counsel responded to this demand on December 16, 2021, stating: “In accordance with the contract they are willing to participate in mediation...I would suggest using Peter Smith whose resume is attached as a mediator.” (¶7 of Knierim Declaration and Exhibit 5 thereto; See also ¶5 of Mehta Declaration and Exhibit A thereto.) On that same day, Plaintiff’s Counsel stated: “My preference is to use a mediator with broker experience. Attached are CV’s from Roger Moss and Frederic Trester to consider. Their rates are also less. Please review and we can talk tomorrow morning at 9:00 a.m., if you are available.” (¶7 of Knierim Declaration and Exhibit 5 thereto.)

Plaintiff, additionally, offers an email dated February 1, 2022, wherein Plaintiff’s Counsel states: “This is a follow up after your clients last communication dated 1-7-2022 and a request for a status update, move forward with the Buyer Representation Agreement or Mediation.” (¶8 of Knierim Declaration and Exhibit 6 thereto.)

On February 4, 2022, Defendant’s former Counsel emailed Defendant Ajeshni Doreen Singh, advising: “I should respond that I no longer represent you and that he should communicate with you directly. As you may note they are requesting mediation pursuant to the listing agreement and you should respond to their request otherwise you may not be entitled to attorney’s fees if you are the prevailing party in subsequent litigation. Please advise.” (¶9 of Knierim Declaration and Exhibit 7 thereto.)

Subsequent to the above, on April 5, 2022, and again on April 8, 2022, Plaintiff himself emailed Defendants Ajeshni Doreen Singh and Madhu Prasad, requesting a response to the above referenced February 1, 2022, email. (¶10 of Knierim Declaration and Exhibit 8 thereto.)

Finally, on May 2, 2022, a formal letter was sent to Defendants, which outlined the nature of the dispute and again requested mediation pursuant to ¶11 of the Buyer Representation Agreement. (¶11 of Knierim Declaration and Exhibit 10 thereto.) While the letter dated May 2, 2022, asserts Defendants did not respond to the earlier communications, dated February 1, 2022, April 5, 2022, and April 8, 2022, this fact is not confirmed within a declaration. (Ibid.)

Similarly, while the motion asserts a response was not received to the above (Motion: 8:17-19), Counsel does not confirm this statement within his declaration. (See Knierim Declaration, generally.)

In the event Plaintiff’s Counsel submits a declaration which confirms Defendants did not respond to the mediation communications, between February and June of 2022, the Court is inclined to find compliance with the mediation requirement.

While it is true that Defendants agreed to participate in mediation, on December 16, 2021 (¶7 of Knierim Declaration and Exhibit 5 thereto; See also ¶5 of Mehta Declaration and Exhibit A thereto), a subsequent failure to respond to Plaintiff’s mediation-related communications would indicate Defendants were unwilling to follow through with their earlier agreement. Thus, while Plaintiff did not