Susan Hershorn v. Bernard J. Stern

date, the effect shall be a denial of that motion without further order of the court." (Id.)

Discussion

The Court finds that the instant motion is procedurally defective and must be denied. A court only has 75 days "after service on the moving party by any party of written notice of entry of judgment" to rule upon a motion for new trial. (Code Civ. Proc., Sec. 660, subd. (c).) Thus, the Court only had 75 days from April 3, 2026 (which is the date of mailing of notice of entry of judgment) to rule on the instant motion for judgment notwithstanding the verdict. Given that more than 75 days have elapsed since the mailing of notice of entry of judgment (and over 120 days have elapsed since such mailing based on the Court's calculation), the Court cannot grant the instant motion. (Code Civ.

Proc., Sec. 629, subd. (b).) Additionally, since the motion for new trial has been denied, it follows that the Court did not rule on the motion for new trial and the instant JNOV motion at the same time. Accordingly, the Court cannot grant the motion. (Code Civ. Proc., Sec. 629, subd. (b) ["[I]f a motion for new trial has been filed with the court by the aggrieved party, the court shall rule upon both motions at the same time."].) Due to the procedural defects with the motion, the Court must deny the motion pursuant to Code Civ.

Proc., Sec. 629, subd. (b). As such, the Court need not reach the arguments raised in support of the motion.

Conclusion

Defendant Stuart Rubin's Motion for Judgment Notwithstanding the Verdict is DENIED. Moving party is ordered to give notice.

Susan Hershorn v. Bernard J. Stern, Case No. 26SMCV00539 Hearing Date: August 24, 2026 Defendant's Motion to Set Aside Entry of Default Background On January 28, 2026, plaintiff Susan Hershorn (Plaintiff) filed a complaint against defendant Bernard J. Stern (Defendant) alleging causes of action for: (1) Breach of Fiduciary Duty; (2) Breach of Trust; (3) Elder Financial Abuse; (4) Conversion; and (5) Intentional Infliction of Emotional Distress. On March 3, 2026, Plaintiff served Defendant with, inter alia, the summons and the complaint via personal service at 6605 Gaviota Ave., Lake Balboa, CA

91406. (April 1, 2026, Proof of Service.) On April 1, 2026, at the request of Plaintiff, default was entered against Defendant. (April 1, 2026, Request for Entry of Default.) On June 16, 2026, Plaintiff filed and served a notice of related case, which indicates that the instant action is related to In re: Jerome O. Stern Revocable 2009 Trust, Dated April 20, 2009, LASC Case No. 26STPB01008, which was filed on January 29, 2026 (the "Probate Action"). On July 16, 2026, Defendant filed and served the instant motion to set aside entry of default pursuant to Code Civ.

Proc. Sec. 473(b). On August 12, 2026, Plaintiff filed and served an opposition. On August 17, 2026, Defendant replied. Although filed and served less than nine court days prior to the hearing (Code Civ. Proc. Sec. 1005(b)), the Court exercises its discretion and will consider the opposition of Plaintiff (Cal. Rules of Court, Rule 3.1300(d)).) Motion to Set Aside Default Moving Party Argument Defendant raises the following arguments: (1) Plaintiff disregarded the duty to warn opposing counsel of the impending default; (2) Plaintiff disregarded his duty to file a notice of related case; and (3) the entry of default should be set aside.

Opposing Argument Plaintiff contends that: (1) Defendant's failure to respond was the result of inexcusable neglect, not excusable mistake; (2) Defendant's counsel failed to provide the required affidavit of attorney fault for mandatory relief; (3) Defendant failed to act diligently after learning of the default; (4) Plaintiff's counsel complied with his ethical duty to warn Defendant's counsel before the default was taken; and (5) the motion should be denied because Defendant's neglect was inexcusable as a matter of law.

Reply Argument On reply, Defendant contends as follows: (1) the standard under Code Civ. Proc. Sec. 473(b) is, by intent, very low; (2) under the mandatory provision of Code Civ. Proc. Sec. 473(b) excusability is not a factor; (3) an attorney purportedly missing an email is excusable neglect; (4) Defendant acted diligently in bringing the motion; (5) Plaintiff did not warn Defendant that she intended to take a default; and (6) Defendant's neglect was excusable.

Governing Law "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." (Code Civ. Proc., Sec. 473, subd. (b).) "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 other proceeding was taken." (Ibid.) "It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits." (Benjamin v.

Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 525 (" Benjamin ").)¿ Code Civ. Proc. Sec. 473(b) also contains a mandatory relief provision. (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516.)¿"[T]he 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." (Ibid.) "If the prerequisites of the mandatory relief provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief." (Ibid.)¿¿¿ Analysis Evidence in Support of the Motion In support of the motion, Defendant declares, inter alia, that he is not familiar with legal proceedings. (Stern Decl.

P. 2.) Defendant declares that he "believe[s] [he] was served with something in this matter [on] February 28, 2206. It was right around the time [he] learned of the related matter in the Probate Court." (Id. P. 3.) "Because these two events happened nearly simultaneously and the content of the documents appeared to be the same, [he] believed there was only one proceeding." (Id. P. 4.) Defendant "believed there was just one lawsuit - the probate petition." (Id.) Defendant states as follows: "[W]hen we filed our objection to the petition in the probate matter, I thought we had satisfied any requirements we may have in regard to our obligations to respond to active matters." (Id.

P. 5.) Brook Changala ("Changala"), who is counsel for Defendant, provides a declaration in support of the motion. Attorney Changala declares that, inter alia, "[a]t no time did Plaintiff's counsel advise the Court or Stern's counsel that there was a separate civil matter pending or that default had been entered against [Defendant] in the civil matter." (Changala Decl. P. 4.) Defendant's proposed

demurrer and anti-SLAPP motion are attached to the declaration of Attorney Changala. (Changala Decl. P.P. 12-13, Exs. 8-9.) Jason Stone ("Stone"), who is counsel for Defendant, provides a declaration. Attorney Stone states that, inter alia, before a response was filed in the Probate Action, this case was handed off to Attorney Changala. (Stone Decl. P. 3.) A search of his emails using the search term "Tamer" did not elicit "a concrete reference to service of a civil complaint" and counsel receives "hundreds of emails everyday." (Id.) "Mr.

Tamer made vague threats about filing a complaint for an extended period of time" but counsel has "no record of him advising [Attorney Stone] that he filed and served the complaint on [his] client." (Id. P. 4.) Attorney Stone has no record or memory of Plaintiff's counsel "emailing or telephoning . . . to warn that his client intended to take the Defendant's default." (Id. P. 5.) Attorney Stone made numerous phone calls to Plaintiff's counsel but did not receive any responses. (Id. P. 7.) Attorney Stone states that if he missed any correspondence or communication concerning the complaint in this matter, such omission "was likely due to the overwhelmingly high volume of emails and telephone calls [he] receive[s] every day.

Alternatively, it could be computer error when [he] performed a search of [his] inbox." (Id.) Evidence in Support of the Opposition In opposition to the motion, attorney Steven M. Tamer ("Tamer") provides a declaration. Attorney Tamer declares, inter alia, that on February 4, 2026, he e-mailed defense counsel, inter alia, a copy of the complaint and the summons for the instant matter. (Tamer Decl. P. 7, Ex. B.) "The subject line of the email listed the unlimited civil case number for the instant matter." (Id.)

On February 15, 2026, Plaintiff's counsel sent a follow up email to Defendant's counsel. (Id. P. 8, Ex. H.) On February 28, 2026, personal service of both the probate petition and the complaint in this action was effectuated upon Defendant at his residence. (Id. P. 9, Ex. C.) Attorney Tamer declares that on March 3, 2026, which was 30 days after the February 4, 2026 emails to counsel, "Defendant's [c]ounsel sent an email stating that he would now be willing to sign the Notice of Acknowledgment and Receipt Form." (Id.

P. 10, Ex. D.) Counsel informed defense counsel that Defendant was personally served with the complaint on February 28, 2026. (Id. P. 11, Ex. E.) Thus, it is the contention of Plaintiff's counsel that "Defendant's counsel had notice on three separate occasions that Defendant had to respond in the instant matter . . . ." (Id. P. 12.) Attorney Tamer indicates that the motion omits material facts and contains false statements. (Id. P. 15.) The Motion is Timely Initially, the Court finds that the motion is timely.

Default was entered against Defendant on April 1, 2026. The instant motion was filed on July 16, 2026. Thus, the motion was made within six months of the entry of default pursuant to Code Civ. Proc. Sec. 473(b).

Moreover, the motion is procedurally proper as a copy of the proposed responsive pleading(s) have been filed with the instant motion. (Code Civ. Proc. Sec. 473(b).) The Failure to Warn Opposing Counsel of the Intent to Seek Default Warrants the Requested Relief It is "a matter of professional courtesy [that] counsel should give[] notice of [an] impending default . . . ." (Bellm v. Bellia (1984) 150 Cal.App.3d 1036, 1038.) Opposing counsel is under no legal obligation to give a defendant notice of an impending default. (Ibid.)

Nonetheless, "[b]y taking a default without giving notice, counsel [takes] the risk that the trial court would grant relief from default . . . but the failure to notify [does] not require the court to grant relief." (Ibid. [emphasis in original].) "[E]-mails are a lousy medium with which to warn opposing counsel that a default is about to be taken." (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 138 (" Lasalle ".) "[A]n attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary's default." (Id. at p. 135 [italics in original].) "In Lasalle, the defendant was personally served with the summons and complaint." (Shapell Socal Rental Properties, LLC v.

Chico's FAS, Inc. (2022) 85 Cal.App.5th 198, 215 (" Shapell ").) "After 35 days passed, the plaintiff's counsel notified the defendant by e-mail that a responsive pleading was past due and threatened to request entry of default unless a responsive pleading was filed the next day." (Ibid.) "When the plaintiff's counsel did not receive a response from the defendant by the deadline, counsel filed a request for entry of default and e-mailed a copy to the defendant." (Ibid.) The Lasalle court held that the default against defendant Joanna Vogel should be set aside and that the trial judge abused his discretion in not setting aside the default. (Lasalle, supra, 36 Cal.App.5th 127, 138.)

Where there is no warning to the opposing party of the impending entry of default, then the default and default judgment are properly set aside. (Shapell, supra, 85 Cal.App.5th 198, 216-217.) The Court finds that the default entered against Defendant should be set aside based on Plaintiff's counsel's failure to notify defense counsel about the impending entry of default prior to its entry. Here, based on the evidence presented by the parties, there is no indication that Plaintiff's counsel "communicated in any manner with anybody representing [Defendant] before seeking entry of default [about the default] . . . ." (Shapell, supra, 85 Cal.App.5th 198, 217.)

Plaintiff's counsel "had an ethical and statutory duty" inform Defendant "of the intent to seek a default and to give counsel a reasonable opportunity to file a responsive pleading." (Id. at p. 215.) Based upon the record before the Court, neither the declaration of Attorney Tamer nor the exhibits attached thereto set forth any communication notifying defense counsel about the intent to take the default of Defendant. This is grounds for

the granting of the motion. The Court further finds that Plaintiff has not provided evidence of any prejudice that she will incur if the default in this action is set aside. (Shapell, supra, 85 Cal.App.5th 198, 217.) Additionally, Defendant moved promptly to set aside default once learning of such matter. (See Shapell, supra, 85 Cal.App.5th 198, 217.) Grounds for Relief Under Code Civ. Proc. Sec. 473(b) Exist The Court also finds that grounds for relief under the discretionary prong of Code Civ.

Proc. Sec. 473(b) based upon mistake are present. Attorney Stone attests to: (1) a high volume of emails and telephone calls; and (2) computer error as being the basis for missing communications as to the filing of the complaint in this action. (Stone Decl. P.P. 5-7.) Also, Defendant has attested to his belief that the Probate Action and the instant action were the same. (Stern Decl. P. 4.) These are "mistakes anyone could have made." (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229.)

As stated above, Plaintiff's counsel did not notify defense counsel of the impending default which warrants granting of the instant motion. In addition, where a party moves promptly for relief from default, and there is necessarily a lack of prejudice to a plaintiff and "very slight evidence will be required to justify a court in setting aside the default." (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 28 [citation omitted].)

Conclusion

T he Court GRANTS Defendant's Motion to Set Aside Default. Moving party is ordered to give notice. | Home -->)" -->