AJAI J. JOHNSON; and MARISSA BROXTON v. KET D. VU; and DOES 1 through 10

(Michael Antonovich Antelope Valley Courthouse: Dept. A14) September 10, 2026 DEPARTMENT A14 LAW AND MOTION RULINGS Department A14 Tentative Rulings If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG or calling 661 483-5774. . If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.

STATE OF CALIFORNIA COUNTY OF LOS ANGELES - NORTH DISTRICT AJAI J. JOHNSON; and MARISSA BROXTON, Plaintiffs, v. KET D. VU; and DOES 1 through 10, inclusive, Defendants. | Case Number 25AVCV00051 [TENTATIVE] RULING ON MOTION Date of Hearing: September 10, 2026 Dept. A-14 Judge William H. Forman | I.

Background

This is a breach of contract and fraud case arising from a residential tenancy involving the real property located at 42970 Pearlwood Drive, Lancaster, CA 93956 (the Property). Defendant Ket D. Vu (Defendant) moves to set aside default. On January 16, 2025, Plaintiffs Ajai J. Johnson and Marissa Broxton (Plaintiffs) filed a complaint against Defendant and DOEs 1 through 10, asserting seven causes of action for (1) false promise fraud, (2) trespass, (3) violation of California Civil Code section 1940.2, (4) nuisance, (5) retaliation, (6) invasion of privacy, and (7) breach of contract.

On November 21, 2025, Defendant filed a demurrer to the complaint, which was subsequently sustained with leave to amend on February 24, 2026. On December 19, 2025, Plaintiffs filed their first amended complaint (FAC) asserting 13 causes of action for: (1) Breach of Implied Warranty of Habitability against Defendant and Tiffany Vu (Tiffany); (2) Negligence against Defendant and Tiffany Vu; (3) Breach of Contract against Defendant and Tiffany; (4) Private Nuisance against Defendant and Tiffany; (5) Harassment against Defendant and Tiffany; (6) Retaliation against Defendant and Tiffany; (7) Fraud/Intentional Misrepresentation against Defendant and Tiffany; (8) Identity Theft and Willful Violation of the Fair Credit Reporting Act (15 U.S.C.

Sec. 1681 et seq.) and the California Consumer Act against Defendant, Tiffany, and Tanya Nguyen (Nguyen); (9) Invasion of Privacy - Cal. Constitution Article 1 Sec. 1 and Common Law against Defendant and Tiffany; (10) Trespass against Defendant and Tiffany; (11) Intentional Infliction of Emotional Distress against Defendant and Tiffany; (12) Unfair Business Practices - Bus. & Prof. Code Sec. 17200 et seq. against Defendant, Tiffany, and Nguyen; and (13) Declaratory and Injunctive Relief against all Defendants.

Plaintiffs assert that on December 6, 2017, they entered into a written rental agreement with Defendant and Tiffany for the Property, and allege ongoing habitability violations, misrepresentations, harassment, retaliation, identity misuse, and unfair business practices related to their tenancy for over eight years. (FAC, P.P. 2-3, 31.)

On February 3, 2026, Defendant filed a demurrer to the FAC. The demurrer was subsequently overruled on June 2, 2026, and Defendant was given 30 days to file an answer to the FAC. On July 17, 2026, Plaintiffs requested default be entered as to Defendant, and default was entered the same day. Plaintiffs also filed a declaration stating they were not requesting default judgment at that time. On August 5, 2026, Defendant filed the present motion to set aside default. On August 26, 2026, Plaintiffs filed their opposition. No reply has been filed. ----- II.

Legal Standard

Standard for Motion to Set Aside Entry of Default - Per Code of Civil Procedure section 473, subdivision (b), a 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." When a request to set aside default 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 the attorney's mistake, inadvertence, surprise, or neglect, that court shall vacate any resulting default entered by the clerk against the attorney's client, and which will result in entry of a default judgment, 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, subd. (b).) The moving party bears the burden of establishing that the default was the result of excusable neglect. (Marcotte v. Municipal Court (1976) 64 Cal.App.3d 235, 239.) ----- III.

Discussion

Application - Defendant moves to set aside Defendant's default and grant Defendant leave to file an answer to the operative FAC pursuant to Code of Civil Procedure section 473 on the grounds that failure to file a timely responsive pleading was due to mistake, inadvertence, and excusable neglect. (Motion, p. 2:3-5.) Defense counsel, Hosp, Gilbert & Bergsten (HGB), asserts that Defendant's failure to respond was the result of calendaring errors within the firm, specifically that the hearing on the demurrer to the FAC was handled by Dianna Abbasi, that HGB internally calendared the deadline to respond, but that Defendant's counsel of record, Robert T.

Bergsten, did not calendar the deadline, and therefore failed to timely file a responsive pleading on Defendant's behalf. (Motion, p. 3:9-14; Bergsten Decl., P. 2.) Bergsten asserts he learned of the error on July 21, 2026 when Plaintiffs filed their request for entry of default. (Motion, p. 3:15-16; Bergsten Decl., P. 3.) On July 23, 2026, Bergsten contacted Plaintiffs requesting that they set aside entry of default, but Plaintiffs did not respond. (Motion, p. 4:1-3; Bergsten Decl., P. 4, Ex. A.)

Counsel maintains that the entry of default was solely due to the mistake, inadvertence, and excusable neglect on the part of Bergsten and not due to any act or omission by Defendant. (Motion, p. 4:4-6; Bergsten Decl., P. 2.) The Declaration of Bergsten is provided attesting to his mistake, inadvertence, and excusable neglect, and a proposed answer to the FAC is attached. (Bergsten Decl., P. 5, Ex. B.) Counsel also argues that Plaintiffs violated ethical and statutory duties by failing to give notice that they would be requesting default or providing counsel an opportunity to file a responsive pleading, amounting to gamesmanship. (Motion, p. 6:3-23.)

Plaintiffs object to the motion on the grounds that HGB was handling the case both before and during the period for Defendant to file an answer, that Defense counsel admits to having notice of and internally calendaring the deadline for responding, and that on the record, that active, mutual discovery continued between the parties while the answer period was running, and on the record counsel has failed to establish excusable neglect. (Opp., p. 2:15-3:3, 3:14-21.) Plaintiffs also argue that the request for relief is discretionary, and that the mandatory attorney-fault provision is inapplicable as the Court is not permitted to convert a motion framed as discretionary excusable-neglect relief into a request for mandatory relief merely because an attorney declaration suggests fault. (Motion, p. 4:18-26.)

Finally, Plaintiffs argue they are not attorneys and may not be held to the ethical and statutory requirements set forth in the Rules of Professional Conduct regarding notice of seeking default, and request monetary consequences be imposed pursuant to Section 473(b) and (c). (Opp., p. 2:20-21.)

Plaintiffs are correct that the general ethical obligation of attorneys to provide warning to adversaries before taking a default does not apply to self-represented litigants. (See McClain v. Kissler (2019) 39 Cal.App.4th 399, 422, n. 15 [argument that self-represented litigants are required to provide warning to adversaries before taking default is without merit].) Plaintiffs are also correct in noting that Defendant did not move for relief under the mandatory attorney-fault provision of section 473(b).

While counsel notes default was through the mistake, inadvertence, and neglect of counsel alone, the pertinent language of Section 473 cited by Defendant is the discretionary relief portion of subdivision (b). (See Motion, p. 4:12-20.) Defendant also argues that the neglect of counsel was excusable, which is only required for discretionary relief, and Defendant asks only that the Court exercise its discretion in granting relief from default. (See Motion, p. 5:3-9.) The motion makes no mention of the mandatory attorney-fault relief provision, and in light of Plaintiffs' opposition and the absence of any reply from Defendant addressing the issue, the Court will analyze the motion as one for discretionary relief only. (See Luri v.

Greenwald (2003) 107 Cal.App.4th 1119, 1125-26 ["the trial court is not required to consider granting relief under the mandatory provision without a request for such relief"].) Here, under the discretionary relief provision of Section 473, subdivision (b), the Court finds relief from default warranted. The calendaring error leading to entry of default constitutes mistake and excusable neglect in light of the circumstances presented. (See McClain, supra, 39 Cal.App.5th at 414 ["the discretionary relief provision of section 473 only permits relief from attorney error 'fairly imputable to the client, i.e., mistakes anyone could have made.' [Citation.] 'Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable.'"].)

Here, counsel did not make a mistake of law, and made only a clerical error of failing to calendar the deadline. This does not reflect incompetence, carelessness, or lack of diligence in defending the case, and is an error precisely contemplated by Section 473(b) and various Courts interpreting the language of excusable neglect and mistake. Counsel was also diligent in moving for relief after their prompt meet and confer efforts were unsuccessful, and a proposed answer is attached to the motion as required.

While Plaintiffs argue that counsel was on notice of the deadline and that Bergsten admits HGB internally calendared the deadline, Bergsten's Declaration asserts that Bergsten, counsel of record and the attorney responsible for filing Defendant's answer, failed to calendar the deadline for his own reference. It is also clear from the record and from Plaintiffs' opposition that Defendant has been actively engaged in this case, filing two demurrers and actively pursuing and responding to discovery throughout the time to file an answer and at the time default was sought by Plaintiffs. "Since '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.'" (Henderson v.

Pacific Gas & Electric Co. (2010) 187 Cal. App. 4th 215, 230.) Accordingly, Defendant's motion to set aside entry of default is GRANTED. Defendant shall file the proposed answer within five days of this Order. Plaintiffs' request for monetary sanctions is DENIED. ----- IV.

Conclusion

Defendant Ket D. Vu's Motion to Set Aside Default Judgment and Default is GRANTED. Defendant shall file its proposed Answer within five days of this Order. Plaintiffs' request for monetary sanctions is DENIED. | Home -->)" -->