Judge: Christian R. Gullon, Case: 24PSCV03816, Date: 2025-05-05 Tentative Ruling

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Case Number: 24PSCV03816    Hearing Date: May 5, 2025    Dept: O

Tentative Ruling

NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT is TBD/CONTINUED.

Background

This case arises from Plaintiff’s purchase of a vehicle and alleged fraud. Plaintiff Kristina Ryabokonova alleges the following against Defendants ALVAREZ CAR SPECIALIST, INC.,  FIDEL ALVAREZ, ALPHA & OMEGA CITY CARS (the “dealership”): In May 2024, Plaintiff purchased a vehicle from the dealership, but the dealership failed disclose significant defects with the car. Thereafter, the dealership referred Plaintiff to Defendant Alvarez Car Specialist for recommended repairs, and this Defendant failed to perform the promised engine replacement, instead charging Plaintiff for a repair that was neither performed as represented nor effective in remedying the Vehicle’s condition. (See Complaint generally.)

On November 6, 2024, Plaintiff filed suit asserting the following causes of action (COAs):

1.       BREACH OF CONTRACT

2.       BREACH OF EXPRESS WARRANTY

3.       BREACH OF IMPLIED WARRANTY

4.       FRAUD

5.       VIOLATION OF CONSUMERS LEGAL REMEDIES ACT, CIVIL CODE § 1750 ET SEQ.

6.       VIOLATION OF BUSINESS & PROFESSIONS CODE §§ 17200 and

7.       VIOLATION OF CIVIL CODE § 1796.5

On February 24, 2025 (at 10:56 AM), default was entered against Defendants.

On February 25, 2025 (at 10:38 AM), Defendants filed their answer.

On April 3, 2025, the application for entry of default judgment was filed.

On April 8, 2025, Defendants filed a CMC statement.

On April 9, 2025, Defendants filed the instant motion.

On April 22, 2025, Plaintiff filed her opposition.

To date, as of Thursday, 5/1/25, no reply has been received (due 5 court days before the hearing).

Legal Standard

Defendants bring forth the motion under Code of Civil Procedure § 473(b). In turn, the statute provides that a party may be relieved from default taken as a result of “mistake, inadvertence, surprise, or excusable neglect.” However, relief is not automatic as the party seeking relief must demonstrate that the default was the result of circumstances that a reasonably prudent person would not have allowed to occur. (Code Civ. Proc., § 437(b))

Discussion

Defendants seek to set aside the defaults because “Counsel for defendants delay of one day in filing the answer vis a vis the Request to Enter Default is excusable neglect.” (Motion p. 6:14-15.) The court continues the hearing as it appears Defendants have inadvertently failed to attach exhibits as the motion references exhibits, but none is attached to the motion or separately filed.

The exhibits are of import as it expands upon the parties’ negotiation discussions. The following is otherwise undisputed by both parties: in November, 2024, Defense Counsel began a email chain conversation with Plaintiff’s Attorney regarding possible resolution of this case; Defendants’ responsive pleading was initially due by December 11, 2024; that Plaintiff granted extensions ultimately to February 10, 2025; that Plaintiff followed up with defense counsel on February 10 and February 18, 2025; that on February 18, Plaintiff expressly warned that failure to respond by February 20 would result in a default request; and that on February 24, 2025, Plaintiff requested entry of default against Defendants.

Now, what is unclear based upon the lack of an exhibit is Defense Counsel’s statement at paragraph 6 of his declaration wherein he states “On page 3 of 5 (Exhibit One) I responded [to the 2-18 email] ‘We were talking about $20,000. I guess we will proceed with litigation. Sorry.’” Absent an exhibit, it is unclear on what date that response was sent, and Plaintiff’s motion and declaration do not discuss that email. Moreover, Defense Counsel declares at paragraph 7 of his declaration that he “immediately drafted [an] answer to the complaint and it was forwarded to DES for electronic filing” but there was a “delay.” With that, the court must examine the exhibits as they should presumably contain submission times/time stamps.

Conclusion

Based on the foregoing, the hearing is continued for Defendants to file their exhibits.