Cavalry SPV I, LLC vs Slawomir Fiedziuszko

The Legacy Defendants move to strike plaintiffs’ prayer “[f]or reasonable attorney’s fees pursuant to applicable law and contracts.” “Under California law, ‘each party to a lawsuit must pay its own attorney fees unless a contract or statute or other law authorizes a fee award.’” (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 237; see Code Civ. Proc., § 1021.) Thus, unless specifically provided by statute or agreement, attorney fees are not recoverable.” (K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1420–1421).

Plaintiffs point to paragraphs 10 and 12 of the Representation Agreement which is attached to the FAC. At paragraph 10, the Representation Agreement states, “In any action, proceeding or arbitration between Buyer and Broker arising out of this Agreement, Buyer and Broker are each responsible for paying their own attorney fees and costs, except as otherwise specified in paragraph 12A.” Paragraph 12A then goes on to state, in relevant part, “Buyer and Broker agree to mediate any dispute or claim arising between them under this Agreement, before resorting to arbitration or court action. ...

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 if that party is the losing party in any such action, the prevailing party shall be entitled to recover attorney’s fees from the non-mediating party, notwithstanding the terms in paragraph 10.”

Plaintiffs contend they come within this contractual exception because they served the Legacy Defendants with a demand for mediation prior to commencement of this action. Plaintiffs attach a copy of this purported demand to their opposition. However, as plaintiffs are well aware, “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., §437, subd. (a); see also CPF Agency Corp. v. R&S Towing (2005) 132 Cal.App.4th 1014, 1032—"our review disregards facts extrinsic to his pleadings.”). The rule applies not just to defendants but to plaintiffs as well.

V. CONCLUSION Based on the foregoing, the Legacy Defendants’ demurrer to the fourth, fifth, and sixth causes of action of plaintiffs’ FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] is OVERRULED.

The Legacy Defendants’ motion to strike is GRANTED with 10 days’ leave to amend.

Calendar Line # 9 Case Name Cavalry SPV I, LLC vs Slawomir Fiedziuszko Case No. 17CV310444 Motion to Set Aside Judgment After Trial by Court Before the court is Defendant Slawomir Fiedziuszko’s (“Fiedziuszko”) Motion to Set Aside and Vacate a Judgment.

I. BACKGROUND This collection case stems from Plaintiff Cavalry SPV I, LLC (“Cavalry”) as assigned of CITIBANK N.A. to collect on an account stated for money lent in the principal amount of $18,747.14 to Defendant Fiedziuszko. Plaintiff filed a Complaint against Defendant on May 4, 2017. (Complaint). Defendant Answered the Complaint on September 19, 2018. (Answer). Discovery motions were filed in the matter in 2020. The matter was set for a short cause trial on April 26, 2021 in Department 22 in front of the Honorable Beth McGowen.

On April 12, 2021, the Defendant filed a motion to continue the case to care for his wife who was undergoing medical issues. On April 26, 2021, the Honorable Beth McGowen, continued the trial to July 26, 2021 in Department 22. (Minute Order, April 26, 2021).

On July 26, 2021, Plaintiff’s counsel Jason Burrows appeared for trial. (Minute Order, July 26, 2021). The Minute Order does not reflect that Defendant Fiedziuszko appeared. (Id.). The Honorable McGowen presided and noted: “There is no continuance request in the court file. The request to proceed to trial is granted.” (Id.). Matthew Roberts was sworn in as a witness. (Id.). The Court noted that the matter was heard and after arguments, the court entered a judgment after trial. (Id.). The Court entered a judgment in the amount of $18,747.14; court costs in the amount of $1,058.24; interest was waived; attorney’s fees was waived; and a total amount of $19,805.28 was awarded. (Id.). Plaintiff was to submit a Court Judgment. (Id.).

Plaintiff filed a memorandum of costs on October 3, 2022, seeking $0.00. On October 25, 2022, the judgment amount was updated to $18,747.14, reflecting no amount was sought or awarded for attorney’s fees or costs. Judge McGowen authorized the Judgment. (October 25, 2022 Judgment). Notice of Entry of Judgment was filed on November 16, 2022, with a proof of service attached for via mail service on November 14, 2022. On December 8, 2022 the clerk’s office provided a rejection letter on the abstract of judgment as the judgment creditors name did not match the one listed on the October 25, 2022 judgment.

Plaintiff filed a memorandum of costs on June 3, 2024 with a proof of service attached via mail service on May 30, 2024. On February 24, 2025, Plaintiff filed a writ of execution seeking interest in the amount of $4,204.87; writ fees of $40.00; and reimbursable fees and expenses for $50.00 on top of the judgment amount of $18,747.14 for a total of $23,042.01. (Writ of Execution). On May 6, 2025, Plaintiff filed a memorandum of costs seeking $90 based on $40.00 for issuing a writ in San Diego on June 12, 2024 and $50 for levying officers fees on November 14, 2024, which was accompanied by a proof of service via mail service on May 5, 2025.

Plaintiff filed a Declaration attesting to verification of Defendant/judgment debtor’s address as 4268 Newberry Court, Palo Alto, California 94306. (Declaration of Eileen Ortega, p. 1). Plaintiff’s counsel further stated that the May 5, 2025 had a return receipt requested and at the time the Declaration was filed no return mail or undeliverable notice provided. (Id., at p. 2). On January 5, 2025, a writ of execution was filed and noted that it was issued on May 19, 2025 in San Diego, but was unsatisfied.

Plaintiff sought $90 in cost as noted in the February 24, 2025 post judgment cost, accrued interest in the amount of $4,709.90, and $40.00 writ fee, for a total amount of $23,587.04.

Defendant filed a motion to set aside the judgment on August 11, 2025, without a proof of service attached or filed. Defendant also filed a notice of lodging three exhibits, A-C in support of the motion, which was not accompanied by a proof of service. Plaintiff filed opposition papers on May 4, 2026, with a proof of service attached via mail service on April 13, 2026.

The Court has carefully reviewed the moving papers, including Defendant’s Motion to Set Aside (totaling 7 pages); Notice of Loding Exhibits A-C in support of Defendant’s motion (totaling 13 pages); Plaintiff’s Opposition (totaling 3 pages); Declaration of Kimberlee Tsai and attached Exhibits 1-4 (totaling 21 pages); Plaintiff’s proof of service of opposition papers (totaling 2 pages); and the pleadings.

II. LEGAL STANDARD

A. PROCEDURAL VIOLATIONS The Court notes procedural violations by both parties. Defendant filed the motion on August 11, 2025. No proof of service was attached with Defendant’s motion or filed separately. On March 17, 2026, Defendant filed a Notice of lodging exhibits in support of his motion, but again no proof of service was attached or file separately. Defendant failed to submit proof of service with its moving papers as required by Code of Civil Procedure section 1010.6. However, the Court considers that Plaintiff acknowledges that the defendant filed the motion to set aside on March 23, 2026 (Declaration of Tsai, p. 2).

Plaintiff opposes the motion to set aside the judgment and filed opposition papers on May 4, 2026. Code of Civil Procedure section 1005(b), opposition papers were to be filed by April 29, 2026. However, the Court notes that Plaintiff’s proof of service of its oppositions were served on the defendant on April 13, 2026.

California Rules of Court, rule 3.1300, subdivision (d) states, “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” Here, the Court balances the totality of circumstances, including judicial economy to avoid the expenditure of any further judicial resources, the court will look past the procedural violations and consider the motion and opposition on its merits. However, the parties are hereby admonished to comply with Rule of Court and Code of Civil Procedure. Any future violations may result in the court’s refusal to consider untimely filed papers.

B. MOTION TO SET ASIDE 1. Code of Civil Procedure section 473(b) Code of Civil Procedure section § 473(b) provides for both discretionary and mandatory relief. In terms of discretionary relief section 473(b), in pertinent part, reads as follows:

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 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. . .

The mandatory provision of section 473(b) reads, in pertinent part, as follows:

Notwithstanding any other requirements of this section, 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.

The general underlying purpose is to promote the determination of actions on their merits. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830). Under this statute, an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code of Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143).

2. Code of Civil Procedure 473.5 Code of Civil Procedure section 473.5(a) provides: “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.”

3. Code of Civil Procedure 473(d) Under Code of Civil Procedure section 473(d), “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

III. ANALYSIS Here, the Defendant seeks to set aside an order that was issued by the trial judge, the Honorable McGowen ordered after the July 26, 2021. Defendant filed this present motion to set aside on August 11, 2025, which is nearly four-years after this court Order and over two-years after the Notice of Entry was filed. Based on this timeline, relief under Code of Civil Procedure section 473(b) is barred as section 473(b) sets forth a strict rule that request for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code of Civ.

Proc., § 473(b); English, supra, 94 Cal.App.4th at 143). Based on the strict timeline, the Court does not need to weigh the defendant’s submission of inadvertence, surprise, mistake, or excusable neglect. Even if the Court considers the defendant’s explanation for inadvertence, surprise, or mistake, that he filed a continuance for the July 26, 2021 trial date and believed it was processed, the problem is the inexcusable delay to pursue relief. Defendant admits that he received notice on August 8, 2021 that his filing for a second continuance was denied.

Defendant should have followed up with the filing, check on an Order from the Court regarding his request for a continuance, appeared for jury trial absent receiving a court order, or at a minimum acted with alacrity or within 180 days to seek relief from the Order.

Similarly, relief under section 473.5 is inapplicable as the Defendant filed an Answer on September 19, 2018. The Order was authorized by the court after the July 26, 2021 that Defendant had notice of and failed to appear. The trial judge specifically noted that “There is no continuance request in the court file. The request to proceed to trial is granted.” (Minute Order, Juley 26, 2021). The motion to set aside was filed nearly four-years after and the Notice of Entry is also untimely as it exceeds two-years.

Finally, because there is no clerical mistake at issue and the judgment and order was entered after a jury trial, section 473(d) is inapplicable.

Defendant failure to seek diligent relief precludes relief set forth under Code of Civil Procedure sections 473(b) and 473.5. Defendant was aware of the Complaint and filed an Answer. Subsequent motions were filed in this matter before a trial was set on April 26, 2021. Plaintiff filed a trial brief and exhibit list. On April 12, 2021, Defendant filed a motion to continue the jury trial date, which the Honorable McGowen granted and set trial for July 26, 2021. Plaintiff filed a trial brief and exhibit list for the July trial. The same trial judge noted on July 26, 2021 that there was no continuance request in the court file. Defendant failed to appear. After the plaintiff requested to proceed with the trial and a witness was sworn in and testified, the Court heard arguments and rendered a judgment. There is no showing that section 473(d) is applicable.

IV. CONCLUSION Based on the foregoing, Defendant’s motion to set aside is DENIED.

Plaintiff to file the formal Order. - oo0oo –