Asman, Bruce E vs. Lisitsyn, Maxim Leo

Here, subsection (a) is complied with via the attached redlined proposed amended complaint and description in the motion of the proposed changes. Additionally, the declaration of counsel complies with subsection (b). The effect of the amendment is to name new representative plaintiffs. The amendment is necessary because Defendants indicate that some of the current class representatives have settled their claims and have terminated their relationship with counsel.

Additionally, seeking leave on the basis noted above appears proper under Pirjada v. Sup. Ct. (2011) 201 Cal.App.4th 1074: " By the time the motion was filed, the court had already chosen other means to protect the absent class members--it gave Westrup Klick leave to amend the complaint after using informal means to identify potential replacement class representatives" (Id. at 1087.)

Even where a plaintiff has been dilatory in bringing the motion, the Court should not deny the motion unless the opposing party can show prejudice. (Kittredge Sports Company v. Superior Court (1989) 213 Cal. App. 3d 1045, 1048.)

Prejudice exists where amendment would: (1) cause a delay of trial; (2) increase preparation costs; (3) change the focus of the complaint; or (4) increase discovery burdens. (Magpali, supra, 48 Cal.App.4th 471, 486-488.) Additional discovery costs may support a claim for prejudice. (Miles v. City of Los Angeles (2020) 56 Cal.App.5th 728, 739 ["Prejudice exists where the proposed amendment would require delaying the trial, resulting in added costs of preparation and increased discovery burdens."].)

Here, there is no current trial date, there is no increase to preparation costs, there is no change to the focus of the complaint and there is no discussion of increased discovery burdens. Therefore, the Court grants the motion. The Court orders the proposed amended complaint filed no later than ten (10) days from the date of this hearing. However, the Court will hear argument as to establishing a deadline for filing the motion for class certification. (California Rule of Court, rule 3.764(b).)

Defendant indicates it has produced policies and procedures, documents showing employee practices, and wage statements/personnel files. If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re: Asman, Bruce E vs. Lisitsyn, Maxim Leo Case No.: VCU332655 Date: August 27, 2026 Time: 8:30 A.M. Dept. 1-The Honorable David C. Mathias Motion: Defendants' Motion to Set Aside Entry of Default Tentative Ruling: To grant the motion; to order Defendants to file the proposed answer no later than ten (10) days from the date of this hearing. Case Management Conference is continued to November 17, 2026; 8:30 am; D1.

Facts In this matter, Plaintiffs sue Defendants Maxim Leo Lisitsyn, Melson Realty, Inc., Alma Rosa Jimenez and Bloom Group, Inc. for negligence and misrepresentation. Relevant here, on May 19, 2026, Plaintiff filed proofs of service as to Defendants Jiminez and Melson Realty. The proof as to Jimenez indicates substitute service of the summons and complaint took place at 1220 W Main St. Visalia, CA at "9:21" on March 27, 2026 and that the documents were left with "Angie Zavala office manager." The documents were thereafter mailed. Attached to the proof is a statement by Matti Hopper "under penalty of perjury" which states three prior attempts at "2:30", at "9:20" and at "12:00pm" on different days in March. The proof as to Melson Realty is substantially the same.

On June 24, 2026, default was entered as to Defendants Jimenez and Melson Realty. On July 7, 2026, Defendants Jimenez and Melson Realty filed this motion for relief from entry of default pursuant to Code of Civil Procedure section 473(b). In support, Defendants provide the declaration of counsel who states: "2... Defendants were served with the Summons and Complaint on May 19, 2026.

3. Defendants' counsel immediately and timely prepared an Answer for filing. However, due to a calendaring and administrative oversight, the Answer was not timely filed." (Declaration of Barney P.P.2, 3.) Defendant attached a proposed answer as Exhibit A to the declaration of counsel.

In opposition, Plaintiffs challenge the calendaring error excuse provided, noting that Defendants' counsel had been in contact with Plaintiffs prior to entry of default, that the parties discussed resolution of the case, and that Defendants waited an additional 13 days after entry of default to file this motion.

Authority and Analysis Generally, under California Code of Civil Procedure section 473(b), the court may grant discretionary relief to a party from a judgment, dismissal, order, or other proceeding that was entered against the party due to excusable mistake, inadvertence, surprise, or neglect on the part of the party. (Id.)

However, also under California Code of Civil Procedure section 473(b), the court must grant relief when an attorney for the party seeking relief submits a sworn affidavit attesting that his or her mistake, inadvertence, surprise, or neglect caused the judgment to be entered against the party. (Code Civ. Proc., Sec. 473(b); Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438 [explaining difference between mandatory and discretionary relief under section 473, subd. (b)].)

As to this mandatory relief provision, Code of Civil Procedure section 473(b) states, in relevant part, the following: "...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." (Code Civ. Proc. Sec. 473(b))

Here, the motion is timely as it is made within six months of entry of default. Counsel for Defendant has submitted a sworn declaration attesting, generally, to failing to file a timely responsive pleading due to a calendaring and administrative oversight. "Relief is mandatory when a complying affidavit is filed, even if the attorney's neglect was inexcusable." (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516-517; Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 225.)

"'The only limitation is when the court finds [that] the default [or dismissal] was not in fact the attorney's fault, for example when the attorney is simply covering up for the client...' (Rogalski v. Nabers Cadillac (1992) 11 Cal. App. 4th 816, 821.)" (Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 991.)

Motions brought under section 473 involve "an assessment of credibility by the trial court." (Behm v. Clear View Techs. (2015) 241 Cal.App.4th 1, 15.) In Behm, the court upheld the trial court's determination that an attorney's affidavit of fault lacked credibility based on "contradictions and discrepancies" between the attorney's affidavit and his "earlier representations to the court." (Id.) This included "different excuses" than those that had been provided earlier in the litigation for the same conduct. (Id.) The court concluded that the attorney had "forfeited his credibility when in his subsequent affidavit, he attempted 'to change the facts and blame himself.'" (Id. at 16.) Thus, the court had not erred in finding the affidavit "incredible" and denying mandatory relief under Sec. 473(b). (Id.)

Behm does not appear to be analogous here, as the Court does not find any such contradictions that would warrant denial. Defendants' counsel could have both failed to properly calendar the response date and engaged in discussions as to resolution of the case prior to default, and during the period Defendants had to respond to the complaint.

"Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default." (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) Where the party in default moves promptly to seek relief, and no prejudice to the opposing party will result from setting aside the default and letting the case go to trial on the merits, "very slight evidence will be required to justify a court in setting aside the default." (Id.)

Next, subsection (b) additionally requires the filing of "a copy of the answer, motion, or other pleading proposed to be filed in the action." Here, this requirement is met through Exhibit A. Therefore, the Court grants the motion. Defendants are ordered to file the proposed answer no later than ten (10) days from the date of this hearing. If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Visalia Division Honorable Bret D. Hillman Presiding- Department 2 Examiner notes for probate matters calendared August 26, 2026, that allow for posting: Status: Recommended for Approval (RFA), Appearance Required or Recommended, Approval Conditional Upon, etc. Case Number | Case Name | Type | Status | Comments | VPR054190 | In the Matter of Medina, Jose Luis | Letters of Administration | Appearance Required | Petition Item 2d(2): amount of bond omitted | VPR053497