Judge: Barbara M. Scheper, Case: 21STCV42721, Date: 2024-02-28 Tentative Ruling

Case Number: 21STCV42721    Hearing Date: February 28, 2024    Dept: 30

Dept. 30

Calendar No.

Juda vs. Wind, et. al., Case No. 21STCV42721

Tentative Ruling re:  Defendant’s Motion to Set Aside Default

Defendant Moziko Wind (“Defendant”) moves for an order setting aside the judgment entered against him on July 27, 2023. The motion is denied.

“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.” (Code Civ. Proc., § 473, subd. (b).) 

This relief is available to a party as a matter of form provided that the party, “no more than six months after entry of judgment, [] in proper form, and [] accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, [makes a motion to] vacate […] [the] default judgment or dismissal entered against [the party], 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., §¿473, subd. (b).)

Plaintiff commenced the instant action on November 19, 2021.  When Defendants failed to timely answer, defaults were entered on March 23, 2022.  The defaults were set aside by stipulation and Defendants answered on May 5, 2022.  Both Defendants were represented by counsel.  Pursuant to motion filed on September 30, 2022, Defendants’ counsel was relieved on October 31, 2022.  Counsel served the Court’s order relieving him as counsel on Defendants.  The order reflected a trial date of July 10, 2023 and a final status conference on June 30, 2023.  After counsel was relieved, Defendants had ample time to find new counsel or prepare to defend themselves at trial. 

On June 27, 2023, Plaintiff filed and served his trial documents.  Plaintiff appeared at the final status conference on June 30, 2023; Defendants did not appear by counsel or otherwise and did not file any trial documents.  Plaintiff gave notice to Defendants that the trial remained set for July 10 and that the Court had set an order to show cause why sanctions should not be imposed for Defendants’ failure to appear and failure to file trial documents.

On July 10, 2023, Defendant Stephanie Betesh appeared remotely and requested a continuance of the trial.  That request was denied.  Attorney Arash Kahen purported to appear on behalf of Defendant Wind but had not filed a substitution of attorney.  (The substitution of attorney was not filed until July 13, 2023.)  Defendant Wind was not present.  Counsel Kahen’s request for a continuance was also denied.  Plaintiff objected to the remote appearance of Defendant Betesh because the proper notice had not been filed.  The Court found that the Defendants had forfeited their right to present evidence since they had not filed any trial documents.  The Plaintiff then presented his evidence to the Court.  The Court found in favor of Plaintiff and Judgment was entered on July 27, 2023.

On January 4, 2024, Defendant Wind filed the instant motion.  Defendant asserts that the motion is timely because the original hearing date for the motion was October 30, 2023.  The Court has no record of any motion set for hearing on that date.

Defendant moves to vacate the judgment pursuant to CCP Section 473(b).  Defendant’s counsel declares that he mistakenly believed he could appear for Defendant without filing a substitution of attorney and request a continuance.  Plaintiff argues that Defendant is not entitled to such relief because Defendant failed to appear at trial and therefore mandatory relief is not available.  A judgment following trial in defendant’s absence is not the procedural equivalent of a default under Section 473(b).  (Vandermoon v. Sanwong (2006) 142 Cal.App.4^th 315, 321.) 

The Court agrees with Plaintiff.  Defendant had notice of the trial date as of November 1, 2022 by virtue of the order relieving prior counsel, well before Defendant began experiencing health problems.  Defendant did not even contact counsel until two days before the trial and Defendant did not appear for the trial and did not file any trial documents.  Under these circumstances, relief under Section 473(b) is not available.

Plaintiff also argues that Defendant has not alleged facts entitling him to relief under the statute because mandatory relief is only available if the party’s “attorney is the sole cause of the default judgment.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1248.) Here, Plaintiff states that Defendant contributed to counsel’s failure to appear at trial because Defendant failed to timely retain counsel and declined to appear and present evidence even though he had the opportunity.

            Again, the Court agrees with Plaintiff in that Defendant is not entitled to mandatory relief under section 473(b) because Defendant has contributed to the conduct which resulted in the adverse judgment. Defendant failed to timely seek counsel and alert the Court and parties as to his health issues which may affect his preparation for trial. Defendant fails to sufficiently address how this neglect was excusable.

Alternatively, Defendant requests that the Court grant relief from judgment pursuant to its inherent and equitable powers under Code of Civil Procedure section 128(a)(8). The statute states:

Every court shall have the power to do all of the following:

…

(8) To amend and control its process and orders so as to make them conform to law and justice. An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following:

(A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal.

(B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement.

Defendant asserts that the Court should vacate the judgment to allow Defendant to defend himself, especially given that he has a meritorious case.

            In opposition, Plaintiff argues that a request for new trial is inappropriate because Defendant failed to timely move for new trial pursuant to Code of Civil Procedure section 659 which requires a moving party to file such a motion within 15 days of the date of notice of entry of judgment.

            The Court agrees with Plaintiff. It appears that the relief that Defendant seeks is not limited to an order vacating the judgment but also an order for new trial. Defendant has failed to meet the time requirements for this request and is thereby time-barred from requesting new trial.