Department 58

Hearing Date: October 4, 2023

Case Name: Hollywood Tower, LLC v. Narian

Case No.: 22STCV31584

Motion: Motion to Set Aside Default Judgment

Moving Party: Defendant Nicole Narian

Responding Party: Unopposed

Tentative Ruling: The Motion to Set Aside Default Judgment is denied.

This case is an unlawful detainer action. Plaintiff Hollywood Tower, LLC (Plaintiff), as the landlord, rented a unit to Defendant Nicole Narian (Defendant); Defendant breached the terms of the lease by failing to pay the rent due.

Default was entered on November 3, 2022. On November 4, 2022, the Court entered default judgment as to Defendant on the issue of possession only.

On May 18, 2023, Defendant Narian moved to set aside the entry of default and default judgment. No opposition was filed.

The motion to set aside the entry of default and default judgment is denied.

Legal Standard

Code of Civil Procedure section 473, subdivision (b) provides for either discretionary or mandatory relief from certain prior actions or proceedings in the trial court. (Luri¿v. Greenwald¿(2003) 107 Cal.App.4th 1119, 1124.)

“ ‘Under the discretionary relief provision, on a showing of “mistake, inadvertence, surprise, or excusable neglect,”¿the court has discretion to allow relief from a “judgment, dismissal, order, or other proceeding taken against”¿a party or his or her attorney.¿¿Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of “mistake, inadvertence, surprise, or neglect,”¿the court shall vacate any “resulting default judgment or dismissal entered.” ’ [Citation.] Applications seeking relief under the mandatory provision of section 473 must be ‘accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.’ The mandatory provision¿further adds that ‘whenever relief¿is granted based on an attorney’s affidavit of fault [the court shall] direct the attorney to pay reasonable compensatory legal fees and costs¿to opposing counsel or parties.’¿” (Ibid.; Code Civ. Proc., § 473, subd. (b).)¿¿

The party seeking such relief must do so “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.)

Discussion

Defendant Narian moves to set aside the entry of default judgment pursuant to the discretionary relief provision. Specifically, Narian seeks relief based on her mistake; she states that she retained a law firm to handle her eviction case but the law firm “did not do any work for [her].” (Narian Decl., ¶ 6.)

This evidence is insufficient to demonstrate a mistake warranting relief. Defendant fails to provide any detail to support her failure to timely respond to the Complaint. She does not state when she retained this law firm, identify the law firm, or provide any corroborating documentary evidence to support the claim (such as a retainer agreement or evidence of payment). Based on the near absence of evidence, Defendant’s declaration is insufficient to justify relief.

Additionally, Defendant’s motion for relief from default is untimely. The default judgement was entered on November 4, 2022, and Defendant did not seek relief until May 18, 2023 – six months and 14 days later. Thus, Defendant cannot obtain relief pursuant to Code of Civil Procedure section 473, subdivision (b). (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.) Furthermore, the proof of service of her motion is defective. It states that service was made by mail on February 23, 2023 – nearly three months before the motion was filed.

Finally, Defendant states that she was never served with the Complaint. In contrast to the proof of service which purports to have personally served her, Narian represents that she was out of the country at the time of service. (Narian Decl., ¶ 5.) Again, however, the declaration is suspiciously vague. Defendant does not state where she travelled, the dates of her travel or provide any documentary evidence to support the claim (such a plane ticket or a hotel reservation). The declaration is not credible.

Conclusion

Accordingly, Defendant’s motion to set aside the default judgment is denied.