Judge Christopher K. Lui, Case Number: 24STCV25680, Date: 2025-01-22 Tentative Ruling

Judge: Christopher K. Lui, Case: 24STCV25680, Date: 2025-01-22 Tentative Ruling

Case Number: 24STCV25680 Hearing Date: January 22, 2025 Dept: 76

The following tentative ruling is issued pursuant to Rule of Court 3.1308 at 2:57 PM on January 21, 2025.

Notice of intent to appear is REQUIRED pursuant to California Rule of Court 3.1308(a)(1). The Court does not desire oral argument on the motion addressed herein.

As required by Rule 3.1308(a)(1), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 by 4:00 p.m. on January 21, 2025.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, the Court may not entertain oral argument if notice of intention to appear is not given.

Plaintiff allege that Defendants increased rents during the COVID rent increase moratorium. Defendants First Pointe Management Group, LLC and Ezralow Company, LLC move to set aside the entry of default against them.

TENTATIVE RULING

Defendants First Pointe Management Group, LLC and Ezralow Company, LLC’s motion to set aside default is GRANTED. Defendants are to file their proposed answer or responsive pleading within 10 days. Because Plaintiff is representing herself in pro per, she is not entitle to recover any attorney’s fees.

ANALYSIS

Motion To Set Aside Default

Discussion

Defendants First Pointe Management Group, LLC and Ezralow Company, LLC move to set aside the entry of default against them. The basis for this motion is that attorney Shamtob miscalendared the date in which a responsive pleading was due for Defendant First Pointe and Defendant Ezralow, and for this reason, completely missed the deadline for filing a responsive pleading in this matter. Defense Counsel represents Defendant First Pointe; Defendant Ezralow; and Defendant Gordon Emerson 41, LLC., and with that, Defense Counsel was under the belief all Defendants responsive pleadings were due on the same date, December 2, 2024. (Declaration of Edrin Shamtob, ¶¶ 7 – 12.) This is corroborated by the fact that Defendant 1440 Gordon Emerson and Gordon Emerson 41 filed demurrers on December 2, 2024.

Civ. Proc. Code, § 473(b) provides:

(b) 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made 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. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.

(Code Civ. Proc., § 473(b).)

On November 26, 2024, default was entered against Defendants First Pointe Management Group, LLC and The Ezralow Company, LLC.. This motion to set aside default was served and filed on December 18, 2024, within the time limit set forth in § 473(b).

“Section 473(b) also contains a ‘mandatory’ or ‘attorney affidavit’ provision,” which relieves a party “if a default judgment or dismissal is the result of its attorney's mistake, inadvertence, surprise, or neglect, without regard to whether the neglect is excusable. [Citation.]” (Henderson, supra, at p. 225.)” (Jackson v. Doe (2011) 192 Cal. App. 4th 742, 755 [bold emphasis added].)

Subsequent amendments to section 473 were apparently in response to Billings. The 1991 version, effective January 1, 1992, extended the attorney [*292] affidavit of fault procedure to entry of the clerk's default. It also eliminated the timeliness/diligence requirement with reference to an attorney affidavit, and required only that the motion be filed within six months after entry of judgment. (Citation omitted.)

(Douglas v. Willis (1994) 27 Cal.App.4th 287, 291-92 (bold emphasis added).)

The clause in section 473, subdivision (b) which mandates the court to grant relief unless it finds that the default was not in fact caused by lawyer error is not only a credibility testing device. It is also "a causation testing device." ( Cisneros v. Vueve (1995) 37 Cal. App. 4th 906, 912 [44 Cal. Rptr. 2d 682].) The Cisneros court affirmed a trial court order denying section 473 relief because the lawyer was not representing the clients when their defaults were entered and therefore was not the proximate cause of their entry. (37 Cal. App. 4th 912.) A trial court's finding on the causation issue will be affirmed so long as it is supported by substantial evidence. ( Johnson v. Pratt & Whitney Canada, Inc., supra, 28 Cal. App. 4th at pp. 622-623.) If the evidence gives rise to conflicting inferences, one of which supports the trial court's findings, we must affirm. (Ibid.)

(Milton v. Perceptual Dev. Corp. (1997) 53 Cal.App.4th 861, 867)

Here, the Court finds that the entry of default against Defendants First Pointe Management Group, LLC and Ezralow Company, LLC was caused by their attorney’s mistake and inadvertence. As such, relief from default is mandatory. Plaintiff’s arguments that the mistake is inexcusable and the attorney’s conduct is unethical is irrelevant per the authorities cited above.

The motion to set aside default is GRANTED. Defendants are to file their proposed answer or responsive pleading within 10 days, since Defendants have had ample opportunity to prepare such response and should have presented such with this motion. Because Plaintiff is representing herself, she is not entitled to recover any attorney’s fees.