Judge Cherol J. Nellon, Case Number: 23STCV21898, Date: 2024-11-13 Tentative Ruling

Judge: Cherol J. Nellon, Case: 23STCV21898, Date: 2024-11-13 Tentative Ruling

Case Number: 23STCV21898 Hearing Date: November 13, 2024 Dept: 14

#16

Case Background

This is an action for breach of the implied warranty of habitability, breach of the implied covenant of quiet enjoyment, fraud, nuisance, premises liability, negligence, breach of contract, intentional infliction of emotional distress, negligence per se, and constructive eviction.

Plaintiffs Kimberly Johnson and Onyx Brown (through a guardian ad litem, Kimberly Johnson) filed their Complaint against Defendants 738 Mariposa, LLC, Westland Industries, Inc., Westland Real Estate Group, and Allen Alevy on September 12, 2023.

On February 23, 2024, default was entered against Defendants Westland Industries, Inc., Westland Real Estate Group, and 738 Mariposa, LLC. Default was not entered as to Defendant Allen Alevy.

On March 28, 2024, Defendants filed an Answer.

On May 22, 2024, Plaintiff filed a motion for judgment on the pleadings as to Defendants’ Answer.

On May 23, 2024, Plaintiff filed a motion to strike Defendants’ Answer.

On June 12, 2024, Defendants filed an opposition to Plaintiff’s motion to strike. In the opposition, Defendants moved to set aside default.

On June 25, 2024, Plaintiff’s motions were taken off calendar pending transfer to an independent calendar court.

On October 10, 2024, Defendants’ counsel filed a notice of unavailability of counsel. Defendants’ counsel represented he would be out of the state between October 10, 2024 and December 7, 2024.

On October 11, 2024, Plaintiff re-filed her motion for judgment on the pleadings and motion to strike.

Instant Pleading

Plaintiff moves for judgment on the pleadings as to Defendants’ Answer.

Decision

Plaintiff’s motion for judgment on the pleadings is DENIED.

The Answer filed on March 23, 2024 is invalid as to Defendants 738 Mariposa, LLC, Westland Industries, Inc., and Westland Real Estate Group only. The Answer is still valid as to Defendant Allen Alevy.

The motion to strike set to be heard on November 21, 2024 is taken off calendar as moot.

The Court sets a hearing on Defendants’ motion to set aside default for January 16, 2025. Plaintiff’s opposition is due on January 3, 2025. Defendants’ reply is due on January 9, 2025.

Discussion

Plaintiff moves for judgment on the pleadings as to Defendants’ answer. Plaintiff argues that Defendants’ answer was not properly filed because Defendants were in default at the time the Answer was filed. Plaintiff argues that the court clerk erred in accepting the Answer.

Code Civ. Proc., section 438 provides that when the moving party is a plaintiff, a motion for judgment on the pleadings may only be granted where the complaint states sufficient facts to constitute a cause of action or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.

Here, Plaintiff alleges that Defendants’ Answer was not properly filed because Defendants were in default at the time the Answer was filed. This is not a basis upon which a motion for judgment on the pleadings may be granted. Therefore, Plaintiff’s motion is denied.

The Court notes that default had already been entered against 738 Mariposa, LLC, Westland Industries, Inc., and Westland Real Estate Group at the time the Answer was filed. However, Default had not been entered as to Defendant Allen Alevy. The Court’s records show that 738 Mariposa, LLC, Westland Industries, Inc., and Westland Real Estate Group remain in default. The records also show that Defendant Alevy Answered. It appears the court clerk accepted the Answer filed on March 23, 2024, because Alevy was not in default. Thus, Plaintiff’s concerns that the defaulted Defendants Answered despite being in default are unfounded. The Answer was not valid as to Defendants 738 Mariposa, LLC, Westland Industries, Inc., and Westland Real Estate Group. Only Defendant Alevy has Answered.

The Court additionally notes that Defendants’ counsel moved to set aside default in their June 2024 opposition to Plaintiff’s motion to strike originally filed in May 2024. However, the motion to strike was never heard because the case was transferred from the personal injury hub to this department.

Per Code of Civil Procedure, section 473, subdivision (b), a court may relieve a party or his counsel from a dismissal against him because of his “mistake, inadvertence, or excusable neglect.” A court shall grant such a motion notwithstanding any other section of the statute whenever an application is filed “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.” (Code Civ. Proc. section 473) And when such relief is available, “there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-982, internal quotations omitted.)

Every court has the power to amend and control its process and orders so as to make them conform to law and justice. (Code Civ. Proc., section 128(a)(8).

Here, Defendants’ deadline to file a motion to set aside default passed on August 23, 2024. However, Defendants motion to set aside default from June 2024 was never considered because the case was transferred to this department and the motions were taken off calendar. Although the motion was procedurally defective because the defaulted Defendants raised the motion in an opposition to a motion to strike, there is a strong public policy in favor of granting relief from default to allow litigants their day in court. The Court is also aware that Defendants’ counsel filed a notice of unavailability and is not available until December 2024, meaning Defendants have not had the opportunity to address the default entered against them since this case was transferred. If Defendants do not have the opportunity to be heard on their motion to set aside default, they would be precluded from filing a new motion because the deadline under Code Civ. Proc., section 473(b) has now passed. This result is inequitable. The Court finds that a hearing on Defendants’ motion to set aside default is necessary to allow this proceeding to conform to law and justice.

The Court sets a hearing on Defendants’ motion to set aside default for January 16, 2025.

Conclusion

Plaintiff’s motion for judgment on the pleadings is DENIED.

The motion to strike set to be heard on November 21, 2024 is taken off calendar as moot.

The Court sets a hearing on Defendants’ motion to set aside default for January 16, 2025. Plaintiff’s opposition is due on January 3, 2025. Defendants’ reply is due on January 9, 2025.