Judge: Bruce G. Iwasaki, Case: 23STCV04046, Date: 2023-07-21 Tentative Ruling

Case Number: 23STCV04046    Hearing Date: February 21, 2024    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:              February 21, 2024

Case Name:                 Lewis Brisbois Bisgaard & Smith LLP v. Great Host International, Inc.  

Case No.:                    23STCV04046

Motion:                       Motion to Set Aside and Vacate Default Judgment

Moving Party:             Defendant Great Host International

Opposing Party:          Plaintiff Lewis Brisbois Bisgaard & Smith LLP

Plaintiff Lewis Brisbois Bisgaard & Smith LLP (Plaintiff), a law firm, brought this action against their former client, Defendant Great Host International, Inc. (Defendant) for failure to pay attorneys’ fees in excess of $100,000.00.

After Defendant failed to file an Answer, default was entered against Defendant on May 26, 2023. The Court entered default judgment on July 21, 2023.

On January 18, 2024, Defendant moved to set aside the entry of default judgment pursuant to Code of Civil Procedure section 473, subdivision (b). Plaintiff opposed the motion.

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

Plaintiff’s objections to Defendant’s evidence are ruled as follows: Nos. 1-2, 4 are sustained, and No. 3 is overruled.

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).)¿¿

Analysis

         Defendant seeks relief pursuant to the discretionary provision of Code of Civil Procedure section 473, subdivision (b).

            Defendant’s president, Ali Zeini, represents that he learned that a default judgment in this action had been entered against Defendant Great Host International, Inc. on August 1, 2023. (Zeini Decl., ¶ 3.) He further claims that Defendant never received service of the complaint and summons in this action, and he never authorized Sam Palacios to accept any documents on behalf of Defendant for the purposes of service. (Zeini Decl., ¶¶ 3-4.)

As the basis for discretionary relief, Defendant contends Zeini was under the “mistaken belief” that summons had not been served in the action. (Mot., 4:8-10.)

            In opposition, Plaintiff argues the motion to set aside based on Code of Civil Procedure section 473 is untimely. This argument is well taken.

            A party seeking relief under Code of Civil Procedure section 473, subdivision (b), 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.) “This six-month time limitation is jurisdictional; the court has no power to grant relief under section 473 once the time has lapsed.” (Austin v. Los Angeles Unified School District (2016) 244 Cal.App.4th 918, 928.)

With respect to discretion relief under Section 473, subdivision (b), the time begins to run when the order or proceeding in question “was taken.” For purposes of this provision, a default is considered its own proceeding—which means a request to set aside a default must be made within six months of its entry.

As explained in a leading treatise, “The motion for discretionary relief must be filed within 6 months after the clerk's entry of default. The motion is ineffective if filed thereafter, even if it is within 6 months after entry of the default judgment (these are separate procedures).” (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 5:279; see also Pulte Homes Corp. v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, 273 [holding that the trial court “could not set aside the default” under section 473(b) where the motion “was filed less than six months after entry of default judgment, but more than six months after entry of default”]; Rappleyea, supra, 8 Cal.4th at p. 980 [“more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”].)

            Plaintiff argues that default was entered against Defendant on May 26, 2023. (5/26/2023 Request for Entry of Default Minute Order, p. 2.) Defendant did not file its motion to set aside until January 18, 2024 – seven months and 23 days later. Thus, this Court is without power to grant relief from the entry of default under section 473, subdivision (b); no relief is available. (Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 297 [“Unless the default itself is vacated, little is gained by vacating the default judgment.”].)

            In reply, Plaintiff cites Jimenez v. Chavez (2023) 97 Cal.App.5th 50, 58 for the proportion that the six-month period runs from the date of entry of default judgment.

Plaintiff misapplies the ruling in this case. The court in Jimenez clarified the rule on how to calculate the six-month period under the statute: “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.” This general rule on calculating the six-month limitations period applies to both discretionary and mandatory relief.

However, and most importantly, the court in Jimenez began the six-month clock from the date of entry of default judgment because the motion sought the mandatory relief provision of Code of Civil Procedure 473, subdivision (b). The timing for motions that seek discretionary relief is different and begins at the time of entry of default. (See e.g., Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 297; Rappleyea, supra, 8 Cal.4th at p. 980 [“more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; see also Edmon et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 5:305.1 [“The wording of the statute makes clear that the 6-month period runs from entry of the default judgment, not the original default. [¶] A motion made within that period is timely although the attorney neglect predated the entry of default”]; Cal. Judges Benchbook: Civil Proceedings After Trial (CJER 2018) Relief from Default and Default Judgment, § 1.12 [“A motion for mandatory relief is timely, even though more than six months have passed since entry of the default, as long as it is filed within six months after entry of the judgment”]

Thus, the motion to set aside the entry of default and default judgment based on the discretionary grounds for relief set forth in Code of Civil Procedure section 473, subdivision (b) is untimely.

Conclusion

            The motion to set aside the default judgment is denied.