Judge: Ashfaq G. Chowdhury, Case: 23GDCV00584, Date: 2024-06-28 Tentative Ruling
Case Number: 23GDCV00584 Hearing Date: June 28, 2024 Dept: E
Hearing Date: 06/28/2024 – 8:30am
Case No. 23GDCV00584
Trial Date: N/A
Case Name: MONEYTUN, LLC., a California limited liability company; v. VIRTUAL
COMPLIANCE MANAGEMENT SERVICES, LLC., a California limited liability company;
DANA MOSLEY, an individual; JAMES DEFRANZ, an individual; DOES 1-30 inclusive
[TENTATIVE
RULING– MOTION TO SET ASIDE/VACATE DISMISSAL]
RELIEF REQUESTED¿
“Plaintiff
MONEYTUN, LLC will move the court for an order granting relief from the
dismissal entered on November 27, 2023.
This
motion will be made on the grounds that was taken against due to the mistake,
inadvertence, surprise or excusable neglect by Plaintiff’s counsel. This motion
is based upon Code Civ. Proc.§ 473(b), which authorizes the Court to grant said
relief based upon mistake, inadvertence, surprise or excusable neglect.
This
motion is further based upon this notice, the attached Memorandum of Points and
Authorities, the Declaration of filed herewith; upon the records and files of
the Court in this matter; and upon such further evidence and argument as may be
presented prior to or at the time of haring on the motion.”
(Pl.
Mot. p. 1-2.)
Procedural
Moving Party: Plaintiff, Moneytun, LLC
Responding Party: No Opposition by any of the Defendants
Moving Papers: Notice/Motion
Opposition Papers: No Opposition
Reply Papers: No Reply
16/21 Day Lapse (CCP § 12c
and § 1005(b):
No – Plaintiff’s motion does not contain a proof of service with the instant
motion. This motion was filed on 5/24/2024; however, since there is no proof of
service with the instant motion the Court is unable to tell if or when
Plaintiff served the Defendants.
Proof of Service Timely Filed (CRC, Rule 3.1300(c)): No. “Proof of
service of the moving papers must be filed no later than five court days before
the time appointed for the hearing.” (CRC, Rule 3.1300(c).) Here, no proof of
service has been filed at all. Five court days before the time appointed for
hearing would be June 21, 2024. As of June 24, 2024, no proof of service has
been filed. Therefore, any proof of service that is filed would be late.
Correct Address (CCP § 1013, § 1013a): First, there is no proof of
service to determine where or if the instant motion was served on Defendants.
Second, even if there was a proof of service, Defendants never appeared in this
action before the Complaint was dismissed. So, it is unclear to the Court how
it can determine if the correct address was used for serving this motion on
Defendants.
LEGAL STANDARD – MOTION TO VACATE/SET
ASIDE DEFAULT/DISMISSAL
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. However, in the case of a judgment, dismissal, order, or
other proceeding determining the ownership or right to possession of real or
personal property, without extending the six-month period, when a notice in
writing is personally served within the State of California both upon the party
against whom the judgment, dismissal, order, or other proceeding has been
taken, and upon his or her attorney of record, if any, notifying that party and
his or her attorney of record, if any, that the order, judgment, dismissal, or
other proceeding was taken against him or her and that any rights the party has
to apply for relief under the provisions of Section 473 of the Code of Civil
Procedure shall expire 90 days after service of the notice, then the
application shall be made within 90 days after service of the notice upon the
defaulting party or his or her attorney of record, if any, whichever service
shall be later. No affidavit or declaration of merits shall be required of the
moving party. 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 court shall,
whenever relief is granted based on an attorney’s affidavit of fault, direct
the attorney to pay reasonable compensatory legal fees and costs to opposing
counsel or parties. However, this section shall not lengthen the time within
which an action shall be brought to trial pursuant to Section 583.310.
(CCP §473(b).)
ANALYSIS
Preliminary Matter
Plaintiff,
Moneytun LLC, filed a Complaint on 3/22/2023 alleging seven causes of action
against three Defendants – Virtual Compliance Management Services, LLC., Dana
Mosley, and James Defranz.
On 9/20/2023, this Court held a Case Management Conference
and an Order to Show Cause Re: Failure to File Proof of Service.
Further, on 9/20/2023 the Order to Show Cause Re:
Failure to File Proof of Service was discharged.
Further on 9/20/2023, the Court noted that “Order to
Show Cause Re: Dismissal /Default is scheduled for 11/27/23 at 09:00 AM in
Department E at Glendale Courthouse.” (9/20/2023 Min. Order.)
On 11/27/2023, the Order to Show Cause
Re:Dismissal/Default was called for hearing and no appearances were made for Plaintiff
or Defendant(s). The Court stated, “The Court orders the Complaint filed by
MONEYTUN, LLC., a California limited liability company on 03/22/2023 dismissed
without prejudice.” (11/27/2023 Min. Order.)
Plaintiff now moves to set aside the dismissal of the
Complaint that occurred on 11/27/2023.
Confusingly, Plaintiff’s motion indicates that
Defendants’ default was taken on July 20, 2023. The Court does not see in its
file that Defendants’ default was taken on July 20, 2023. If Plaintiff believes
that Defendants’ default was on July 20, 2023, then Plaintiff needs to point
the Court to where in the Court’s file it was indicated that Defendants’
default was taken.
Service Issues
Under CCP § 1005(b) all moving and supporting papers
shall be served and filed at least 16 court days before the hearing. (See CCP §
1005(b).) CCP § 1005(b) also discusses how many days should be added to the 16
court days depending on how the motion was served.
Here, Plaintiff’s motion does not contain a proof of
service with the instant motion. This motion was filed on 5/24/2024; however,
since there is no proof of service with the instant motion the Court is unable
to tell if or when Plaintiff served the Defendants. Therefore, the Court has no
ability to determine if the instant motion was timely.
Further, “Proof of service of the moving papers must
be filed no later than five court days before the time appointed for the
hearing.” (CRC, Rule 3.1300(c).) Here, no proof of service has been filed at
all. Five court days before the time appointed for hearing would be June 21,
2024. As of June 24, 2024, no proof of service has been filed. Therefore, any
proof of service that is filed would be late.
Further, as to if the proper address was served under
CCP § 1013, there is no proof of service to determine where or if the instant
motion was served on Defendants. Second, even if there was a proof of service,
Defendants never appeared in this action before the Complaint was dismissed. Therefore,
it is unclear to the Court how it can determine if the correct address was used
for serving this motion on Defendants. If the Court were to continue this
motion, Plaintiff needs to address how it met the requirements of CCP § 1013.
Mandatory vs. Discretionary Relief
As
a preliminary matter, it appears that Plaintiff’s counsel confuses the
differences between seeking relief under (1) the mandatory relief provision of
CCP § 473(b) and (2) the discretionary relief portion of § 473(b).
Plaintiff’s counsel argues that Plaintiff’s counsel’s
neglect was excusable yet also argues that if an attorney affidavit of fault is
attached then setting aside the dismissal is required.
“[T]he superior court is only required to grant a
motion for relief under the mandatory relief provision of section 473(b) if the
three conditions are met: (1) the motion is timely filed, (2) is in “in proper
form,” and (3) is accompanied by an attorney affidavit attesting to, and
showing that the challenged order was taken due to, attorney fault. (Jiminez
v. Chavez (2023) 97 Cal.App.5th 50, 63 citing Dollase v. Wanu Water,
Inc. (2023) 93 Cal.App.5th 1315, 1322-1323.)
“The range of attorney conduct for which relief can be
granted in the mandatory provision is broader than that in the discretionary
provision, and includes inexcusable neglect. But the range of adverse
litigation results from which relief can be granted is narrower. Mandatory
relief only extends to vacating a default which will result in
the entry of a default judgment, a default judgment, or an entered dismissal.”
(Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603,
616.)
Here, the Court notes that affording relief under the
mandatory-relief provision appears to provide an easier hurdle for a movant
than the discretionary provision. This appears to be the case because the
mandatory-relief provision allows for relief even when the attorney error is
inexcusable. (See Jiminez v. Chavez (2023) 97 Cal.App.5th 50, 57-58;
“[A] party is entitled to mandatory relief under section 473(b), even when the
attorney error is inexcusable, so long as the attorney affidavit of fault shows
the error was the fault of the attorney rather than the client.” Id.)
Further, meeting the burden for relief under the
mandatory provision appears easier in the sense that the mandatory provision
does not contain language that the application must be made within a reasonable
time. “An application under the discretionary relief provision ‘shall be made
within a reasonable time, in no case exceeding six months, after the judgment,
dismissal, order, or proceeding was taken.’” (Jiminez v. Chavez (2023)
97 Cal.App.5th 50, 58.) “Unlike the discretionary ground for relief, a motion based
on attorney fault need not show diligence in seeking relief. The motion is
timely filed within six months of the entry of the default judgment or
dismissal.” (Dollase v. Wanu Water, Inc. (2023) 93 Cal.App.5th 1315,
1323 citing Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1147.)
Here, setting aside the service issues, the Court
entered dismissal against Plaintiff on 11/27/2023. Therefore, mandatory relief
can be granted if Plaintiff met the three conditions under the mandatory relief
provision of CCP § 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, Plaintiff does not address if the instant motion/application
is timely with respect to the six month requirement.
That being said, the Court dismissed the Complaint on
11/27/2023. The instant motion was filed on 5/24/2024; therefore, it was made
no more than six months after entry of dismissal. However, the Court previously
pointed out the issues it had with service of the instant motion. Therefore, if
the Court continues this motion, a potential issue could arise as to the
six-month timeliness requirement, depending on when the motion was served or
when it was filed with the Court.
(3) Accompanied By an Attorney Affidavit
of Fault
“[A]nd
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.” (CCP §473(b).)
Attached to Plaintiff’s motion is the Declaration of
Shannon Duane. The Duane Declaration states in relevant part:
Plaintiff filed this action on March 22,
2023. Defendants' default was taken on July 20, 2023. The prior handling
attorney for the case, Kari Keidser, left Russell Law Group in October of 2023,
and I was hired and began work for the firm in the last week of October of
2023. At the same time, the firm's long-standing assistant was beginning to
exit the firm due to personal problems (which issue was not resolved until a
new assistant was hired in January of 2024 ), and unfortunately, the hearing
for this case was not on my and was not communicated to me, which resulted in
my not filing the default judgment package before said date, at which time the
court dismissed the case.
In addition, although I was working on the
default judgment package at this time, my father went into the hospital in
early November and ended up staying for about eight weeks, after which he
passed away. At the same time, my health went downhill quickly, which resulted
in her hospitalization for eight weeks in January and February with a MRSA
infection. My recovery has been slow, and I have only started to return to work
full time within the last month. Thus, Plaintiff's failure to appear at the
hearing, which resulted in the dismissal, was entirely the fault of Plaintiff's
counsel, and was due to excusable neglect, inadvertence, surprise, and/or
mistake.
(Duane Decl. ¶¶ 2-3.)
Setting aside service
issues, it appears that Plaintiff satisfied the element that requires an
attorney affidavit of fault.
(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 Court will hear
argument as to if this application is in proper form.
First, it is unclear to
the Court what pleading/document proposed to be filed should be filed with this
motion. Plaintiff submits the default package as Exhibit 1, presumably because Plaintiff
was seeking to obtain a default judgment prior to Plaintiff’s Complaint being
dismissed. However, the Court is uncertain, because there is no Opposition and
Plaintiff does not address the issue, as to if the pleading that had to be
filed was a new version of the Complaint since the Complaint was dismissed.
If the Court determines
that the default package attached as Exhibit 1 is the document that must be
filed with the instant application, then Plaintiff met the requirement of the
application being in proper form.
However, the Court points
out that the Duane Declaration stated, “Further, Plaintiff submits the default
package which Plaintiff requests the court file
after setting aside the dismissal, which default judgment package is
attached hereto as Exhibit 1.” (Duane Decl. ¶ 5.)
Here, the Court notes
that it will not be filing the default package for Plaintiff. Plaintiff is the
one who needs to file/serve whatever documents it finds appropriate to do what
is necessary by law to obtain a default/default judgment. The Court will not do
Plaintiff’s work for it.
TENTATIVE RULING
The
Court tentatively plans to deny the instant motion based on the service issues
that the Court pointed out. If the Court continues the instant motion so that Plaintiff
can cure its service issues, Plaintiff should be prepared to address the issues
it brought up with respect to whether the application/motion is timely under
the six-month requirement and whether or not it was in proper form.
Further, If Plaintiff
believes that Defendants’ default was taken on July 20, 2023, then Plaintiff
needs to point the Court to where in the Court’s file it was indicated that
Defendants’ default was taken.