Judge Daniel M. Crowley, Case Number: 22STCV20518, Date: 2024-03-22 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter. If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SMCDept71@LACourt.org. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

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Plaintiff Juan Elias Polanco’s unopposed motion to vacate and set aside the default judgment entered against Defendant Antonio J. Polanco on May 16, 2023, is denied.

Plaintiff Juan Elias Polanco (“Juan”) (“Plaintiff”) moves unopposed for this Court to vacate and set aside the default judgment entered against Defendant Antonio J. Polanco (“Antonio”) (“Defendant”) on May 16, 2023, on the grounds of Plaintiff’s excusable neglect in filing a default against Defendant without having full knowledge of the damages Defendant has caused and excusable surprise that Defendant has finally retained legal counsel to proceed with the matter. (Notice of Motion, pgs. i-ii; C.C.P. §473(b).)

On June 23, 2022, Plaintiff filed his operative Complaint against Defendant alleging six causes of action: (1) breach of contract; (2) quiet title; (3) partition; (4) accounting; (5) constructive trust; and (6) unjust enrichment, relating to real property located at 1017 W. 45th Street, Los Angeles, California 90037 (“Subject Property”). (See Complaint.)

On September 7, 2022, entry of default was filed against Defendant. (9/7/22 Entry of Default.)

On May 16, 2023, this Court entered default judgment against Defendant. (5/16/23 Default Judgment.) On May 16, 2023, this Court also entered an interlocutory judgment for partition by sale. (5/16/23 Interlocutory Judgment.) On June 23, 2023, Plaintiff filed proof of publication of the notice of the sale of the Subject Property. (6/23/23 Proof of Publication.)

Plaintiff filed the instant motion on November 29, 2023. As of the date of this hearing no opposition has been filed.

The court is empowered to relieve a party “upon any terms as may be just . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (C.C.P. §473(b).)

C.C.P. §473(b) consists of two distinct parts: “a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25-26; Bailey v. Citibank, N.A. (2021) 66 Cal.App.5th 335, 348.)

With regard to the discretionary provision, “[t]he 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.” (C.C.P. §473(b).)

“[W]henever 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, [the court shall] vacate any resulting . . . dismissal entered against his or her client.” (C.C.P. §473(b).) The court must set aside the dismissal “unless the court finds that the . . . dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (C.C.P. §473(b).)

Plaintiff’s untimely motion to set aside or vacate default judgment entered against Defendant is denied. Default judgment was entered against Defendant on May 16, 2023. The cut-off date to file the instant motion for discretionary relief was November 16, 2023. Plaintiff filed the instant motion on November 29, 2023, beyond the six-month period to set aside or vacate default judgment.

Further, Plaintiff has failed to demonstrate any mistake, inadvertence, surprise or neglect; he merely seeks to recover additional damages against Defendant. (See Decl. of Polanco ¶¶14-15.) While C.C.P. §473(b) is a mechanism that can be used for any party, Plaintiff is moving to vacate default judgment on Defendant’s behalf; Plaintiff is not the party referred to in the applicable section of the statute. (See C.C.P. §473(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.], emphasis added.)

Plaintiff’s unopposed motion to set aside the default judgment entered against Defendant May 16, 2023, is denied.

Hon. Daniel M. Crowley

Judge of the Superior Court