First Bank of the Lake vs. ASM Bistro LLC

Lindeman as a plaintiff in this action.

Plaintiffs shall give notice of the ruling.

103 2024-01410627 1. Motion to Vacate 2. Motion to Vacate First Bank of the Lake vs. ASM (1) MOTION TO VACATE DEFAULT Bistro LLC Defendant Haydee Docasar M.D., P.C.’s motion to vacate the 2/2/26 default judgment is denied.

Code Civ. Proc. § 473(b) states the following, in pertinent part: “The court may, upon any terms as may be just, relieve a party or the party’s legal representative from a judgment, dismissal, order, or other proceeding taken against the party through the party's 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.”

Defendant’s motion is not timely. The six-month time limit in Code Civ. Proc., § 473(b) for discretionary relief runs from entry of default, not the entry of default judgment. (See Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 970; Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 39.) The motion was filed on 4/27/26. Default was entered on 10/10/24. (ROA 30.)

In addition, Defendant failed to file a copy of the proposed responsive pleading, and more importantly, proof of service with the motion. (Code Civ. Proc., §§ 473(b), 1005(b); CRC, Rule 3.1300(a).)

Furthermore, Defendant fails to establish excusable neglect or that the default judgment is void.

Defendant states that she was engaged in the bankruptcy proceedings during the period in which a responsive pleading to this complaint was required, and thus those demands should excuse her conduct. This is not excusable neglect. (See e.g., Davis v. Thayer (1980) 113 Cal.App.3d 892, 905-906 (court found that it was not grounds for relief because defendant could not afford a lawyer or that he was preoccupied with the pending criminal proceedings against him as defending a criminal case does not prevent a person from defending a civil suit as well).)

Contrary to Defendant’s arguments, Defendant Haydee Docasar’s Ch. 7 bankruptcy discharge as to her, individually, does not also discharge Haydee Docasar M.D., P.C. An individual is not the same as a corporation for bankruptcy purposes. There is no indication that Plaintiff’s service of summons was invalid or that the Court lacks jurisdiction. Thus, no showing has been made that the default judgment is void.

Based on the foregoing, the motion is denied.

The clerk shall give notice.

(2) MOTION TO VACATE DEFAULT

Defendant Alec Sergio Martin’s motion to vacate the 2/2/26 default judgment is denied.

Code Civ. Proc. § 473(b) states the following, in pertinent part: “The court may, upon any terms as may be just, relieve a party or the party’s legal representative from a judgment, dismissal, order, or other proceeding taken against the party through the party's 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.”

Similar to the motion filed by Haydee Docasar M.D., P.C., Defendant Martin’s motion is also untimely. It was filed in May of 2026. Default was entered on 10/10/24. (ROA 30.)

While opposed, no proof of service was filed, and the motion was not served. (Code Civ. Proc., § 1005(b; CRC, Rule 3.1300(a).) Plaintiff’s counsel states they obtained the motion online and that Defendant has refused their requests to serve Plaintiff with the motion. (Andonian Decl., ¶¶ 16-17 & Ex. H.)

Defendant Martin declares that he was told that his signature on the guarantee did not actually impose any personal liability, among other things, excusing him from responding and seeking timely relief from default. (Martin Decl., ¶¶ 3-14.) This is directly contradictory to the language in the guaranty.

Moreover, this does not demonstrate excusable neglect, especially given Plaintiff’s evidence that Martin knew of the default by March 2025, and specifically that Plaintiff would not stipulate to set it aside on 3/31/25. (Andonian Decl., ¶¶ 10-11 & Ex. F.) Martin waited more than a year to file his motion.

Self-represented litigants must follow the same procedural rules as attorneys. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247; see also Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 [“A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation”].)

Accordingly, the Court also denies Defendant Alec Sergio Martin’s motion.

The clerk shall give notice.

104 2024-01395404 1. Motion for Attorneys’ Fees 2. Order to Show Cause re: Dismissal on Settled Case Gil vs. Volkswagen Motion for Attorney Fees Group of America, Plaintiff Federico Gil’s motion for attorneys’ fees is granted. Plaintiff is awarded reasonable Inc. attorneys’ fees in the amount of $23,245.50, against Defendant Volkswagen Group of America, Inc.

Here, the Court determines that the hourly rates of Plaintiff’s attorneys, which range from $400 to $595, are reasonable and within the prevailing rates in the community for similar work. The Court declines to impose a rate of $400 across-the-board as suggested by Defendant.