Judge Ashfaq G. Chowdhury, Case Number: 23GDCV00350, Date: 2024-04-05 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV00350, Date: 2024-04-05 Tentative Ruling

Case Number: 23GDCV00350 Hearing Date: April 5, 2024 Dept: E

Hearing Date: 04/05/2024 – 8:30am
Case No. 23GDCV00350
Trial Date: UNSET
Case Name: WELL BUILT CONSTRUCTION & RENOVATIONS LLC v. JEIMECE WARE, an individual; DOES 1-100 inclusive

[TENTATIVE RULING– MOTION TO SET ASIDE/VACATE DEFAULT]

RELIEF REQUESTED¿
“Defendant, Jeimece Ware, moves to set aside the default and default judgment entered against her on the Complaint of Plaintiff Well Built Construction & Renovations (Well Built). This motion is made pursuant to Code of Civil Procedure section 473(b) on the ground that the default judgment was taken against her through her mistake, inadvertence, surprise, or excusable neglect, Code of Civil Procedure section 473.5 on the ground that service of the summons did not result in actual notice to her in time to defend the action, and on the Court’s inherent, equitable power to set aside a judgment on the ground of extrinsic fraud or mistake.”

PROCEDURAL
Moving Party: Defendant, Jeimece Ware
Responding Party: No Opposition

Moving Papers: Notice/Motion
Opposition Papers: No Opposition
Reply Papers: No Reply

16/21 Day Lapse (CCP §12c and §1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP §1013, §1013a): Yes/No – This motion was allegedly served via mail and electronic mail. The mailing address that Defendant used to serve Plaintiff’s counsel appears to be correct. However, with respect to electronic mail, the email address on the proof of service does not match the email address listed on eCourt for Plaintiff’s counsel.

BACKGROUND
Plaintiff, Well Built Construction & Renovations LLC, filed a Complaint for breach of contract against Defendant, Jeimece Ware, on 2/22/2023. On 7/27/2023, Plaintiff filed a proof of service of summons indicating that Defendant was served by substituted service on 7/15/2023.

On 9/5/2023, Plaintiff filed a request for entry of default and the Court entered default on 9/5/2023.

On 10/19/2023, the Court entered default judgment against Defendant.

On 10/25/2023, the Court filed the notice of entry of judgment and certificate of mailing.

It appears as if Plaintiff served the Notice of Entry of Judgment on 12/4/2023.

ANALYSIS
Defendant moves to set aside the default and default judgment under three theories – CCP §473(b) on the ground that the default judgment was taken against her through her mistake, inadvertence, surprise, or excusable neglect; CCP § 473.5 on the ground that service of the summons did not result in actual notice to her in time to defend the action; and on the Court’s inherent, equitable power to set aside a judgment on the ground of extrinsic fraud or mistake.

CCP §473(b)
CCP §473(b) states 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…

(CCP §473(b).)

Analysis of 473(b)

(1) The Motion is Timely Filed
“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…” (CCP §473(b).) “We conclude that the six-month limitations periods of the mandatory and the discretionary relief provisions of section 473(b) mean the longer of six calendar months or 182 days.” (Jiminez v. Chavez (2023) 97 Cal.App.5th 50, 58 citing Gonzales v. County of Los Angeles (1988) 199 Cal.App.3d 601.)

Here, default judgment was entered on 10/19/2023. This motion was filed on 3/4/2024. At latest, it was served 5 calendar days after March 4, 2024 via mail. Six months after 10/19/2024 would be April 19, 2024; therefore, this motion was filed within six months of the entry of judgment.

(2) Application is in Proper Form
“Legislature intended the phrase “in proper form” to encompass the mandate that the application for relief under section 473, subdivision (b) be accompanied by the pleading proposed to be filed therein.” (Hernandez v. FCA US LLC (2020) 50 Cal.App.5th 329, 336-37 citing Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 401.)

“[S]ubstantial compliance with that requirement is sufficient.” (Dollase v. Wanu Water, Inc. (2023) 93 Cal.App.5th 1315, 1324 citing Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403.)

Here, the motion was accompanied by a proposed answer.

(3) taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.
“…or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP §473(b).)

Here, Defendant Jeimece Ware submitted a declaration which stated :

1. I am the defendant in the above captioned case. I have personal knowledge of the facts contained herein, and if called upon to testify, I could and would competently do so.

2. I make this declaration in support of my Motion to Set Aside the Entry of Default and Default Judgment entered against me.

3. I reside at 3700 S. Sepulveda #357, Los Angeles, CA 90034. I have resided at this address since October 2022. I live there with my three kids, ages 10, 5, and 23 months.

4. The first time that I became aware of the lawsuit against me was in late September of 2023. A yellow envelope with Summons and Complaint was stuffed in my mailbox.

5. I was never handed a copy of the Summons and Complaint. I have done nothing to avoid service of the Summons and Complaint.

6. On July 15, 2023 at 8:30 a.m. I was attending classes on the campus of Charles Drew University. I was on campus until 2:00 pm. There was no one at my residence at that time.

7. I retained LS Carlson Law P.C., on January 5, 2024. I hoped that the law firm would be able to negotiate some sort of settlement or alternatively address the judgment that was entered against me.

8. The Complaint filed against me omitted some material facts. Most importantly, the Complaint failed to disclose that partial payments had already been made and all of the repairs were not completed. Plaintiff is attempting to take advantage of the situation to recover more than what might be deserved.

(Ware Decl. ¶¶1-8.)

Further, Defendant’s former counsel submitted a declaration that stated:

1. I am a senior associate at LS Carlson Law, P:C (the “Firm,”) attorneys for defendant Jeimece Ware (“Defendant.”) I have personal knowledge of the facts contained herein, and if called upon to testify, I could and would competently do so.

2. I make this declaration in support of Jeimece Ware’s Motion to Set Aside the Entry of Default and Default Judgment entered against her.

3. I was assigned to work on Jeimece Ware’s case in early January 2024. My first correspondence with her was on January 11, 2024. I introduced myself and provided a brief overview of what I expected would occur.

4. I sent a Notice of Representation to counsels for Plaintiff Well Built Construction & Renovations LLC Rodolfo Gaba, Jr. and Ryan M. Arakawa. In this letter I also requested that they stipulate setting aside the default judgment so that the case can be heard on its merits, and also avoid the need to have my client file a motion to set aside the entry of default and the default judgment.

5. Though opposing counsels did not agree to stipulate setting aside the entry of default and the default judgment. They did begin settlement negotiations. I believe that the settlement negotiations were in good faith, but the parties still could not reach an agreement.

6. I did not want to conclude settlement negotiations until I absolutely needed to. Jeimece Ware’s Motion to Set Aside the Entry of Default and Default Judgment has a 6 month window to be filed under Code of Civil Procedure section 473(b) and I wanted to use it all to try to reach a settlement.

(Sarnowski Decl. ¶¶1-6.)

“The provisions of section 473…are to be liberally construed and sound policy favors the determination of actions on their merits.” [Citation.] 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.” (Shapell Socal Rental Properties, LLC v. Chico’s FAS, Inc. (2022) 85 Cal.App.5th 198, 212.)

Here, although Plaintiff filed a proof of service of summons indicating that Defendant was served by substituted service on 7/15/2023; Defendant’s declaration calls the substitute service into question because she states that “The first time that I became aware of the lawsuit against me was in late September of 2023. A yellow envelope with Summons and Complaint was stuffed in my mailbox.” (Decl. Ware ¶4.) Further, Defendant’s declaration states that no one was at her residence at the time of the alleged substitute service. (See Decl. Ware ¶6.)

Therefore, Defendant has demonstrated sufficient grounds to vacate the default and default judgment entered against her in this case.

CCP §473.5
CCP §473.5 states:

(a) 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.

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.

(CCP §473.5(a)-(c).)

Here, Movant sufficiently describes how she filed this within the 180 day timeframe.

Court’s Inherent Equitable Power
As to Defendant’s basis for relief under this theory, the Defendant states:

Courts have inherent, equitable power to set aside a judgment on the ground of extrinsic fraud of mistake. (Olivera v. Grace (1942) 19 Cal.2d 570, 575–576.) This term broadly applies whenever “when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) For a default judgment, the party must demonstrate that it has a meritorious case, it must articulate a satisfactory excuse for not presenting a defense to the original action, and it must demonstrate diligence in seeking to set aside the default once the default has been discovered. (Id., 8 Cal.4th at p. 982.)

(Def. Mot. p. 5.)

As to this theory, Defendant provides little explanation as to what is considered extrinsic fraud or mistake. Further, Defendant does not explain what the extrinsic fraud or mistake was in this case.

As to whether Defendant has a meritorious case, it is unclear how Defendant is demonstrating it has a meritorious case. Defendant simply stated:

Jeimece Ware has a meritorious case. The Complaint omitted some material facts. Most importantly, the Complaint failed to disclose that partial payments had already been made and all of the repairs were not completed. Plaintiff is attempting to take advantage of the situation. The relief sought by Plaintiff is exaggerated. Payments made to Plaintiff have not been credited. A complete accounting after thorough discovery will establish this fact. (Declaration of Jeimece Ware, ¶5)

(Def. Mot. p. 8.)

Defendant provided no legal context or background explanation as to how this shows that Defendant has a meritorious case.

Defendant also argues she had a satisfactory excuse for not presenting a defense because she was not informed of the lawsuit against her in time for her to defendant and that the entry of default was taken completely by her surprise.

As to diligence in setting aside the entry of default and default judgment, Defendant points to various portions of the Ware and Sarnowski declarations.

TENTATIVE RULING
The Court will hear from counsel

Sanctions

Under 473(c):

(1) Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following:

(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.

(2) However, where the court grants relief from a default or default judgment pursuant to this section based upon the affidavit of the defaulting party’s attorney attesting to the attorney’s mistake, inadvertence, surprise, or neglect, the relief shall not be made conditional upon the attorney’s payment of compensatory legal fees or costs or monetary penalties imposed by the court or upon compliance with other sanctions ordered by the court.

(CCP §473(c)(1)-(2).)