Judge: David B. Gelfound, Case: 22CHCV00289, Date: 2024-12-06 Tentative Ruling

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Case Number: 22CHCV00289    Hearing Date: December 6, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO VACATE

Motion filed: 7/23/24

MOVING PARTY: Defendant Charles M. Johnson

RESPONDING PARTY: Plaintiff Dunn Investment Properties, Inc.

NOTICE: OK. 

RELIEF REQUESTED: An order vacating the Court’s January 19, 2024, Order awarding $8,300.00 in attorney fees and costs to Plaintiff’s counsel.

TENTATIVE RULING: The motion is DENIED.

BACKGROUND

This is an unlawful detainer action.

On April 25, 2022, Plaintiff Dunn Investment Properties, Inc. (“Plaintiff” or “Dunn Investment”) filed this action against Defendants Charles M. Johnson and Sheila S. Johnson (collectively, “Defendants”), and Does 1 to 25, for unlawful detainer at 24773 Avenue Rockefeller, Santa Clarita, CA 91355 (the “Premises”). Subsequently, on January 26, 2023, Plaintiff filed its operative Third Amended Complaint (“TAC”).

On March 8, 2023, Plaintiff requested a default entered against Defendant Sheila S. Johnson (“Sheila”) and all unknown occupants, which was subsequently entered by the Clerk on the same day.

On May 30, 2023, the Court granted Plaintiff’s motion for summary adjudication, confirming Plaintiff’s right to possession of the Premises. (5/30/23 Minute Order.)

On August 8, 2023, the Court denied Defendants’ motion for reconsideration. (8/8/23 Minute Order.) Subsequently, on January 19, 2024, the Court granted Plaintiff’s motion for sanctions, awarding $8,300.00 in attorney fees and costs to Plaintiff’s counsel (the “Order”). (1/19/24 Minute Order.)

On July 23, 2024, Defendant Charles M. Johnson (“Charles” or the “Moving Defendant”) filed the instant Motion to Vacate the January 19, 2024, Order. Subsequently, Plaintiff filed its Opposition on November 22, 2024.

No Reply papers have been received by the Court.

ANALYSIS

Code of Civil Procedure section 473 subdivision (b) provides, in pertinent part, that:

“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 .... No affidavit or declaration of merits shall be required of the moving party. 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.”

A.    Motion to Vacate

Moving Defendant brings this Motion under the mandatory relief provisions of California Code of Civil Procedure section 473, subdivision (b). (Mot. at pp. 3 and 4.)

Moving Defendant’s counsel, Dominic Trutanich (“Trutanich”), declares, “Between February of 2001 through November 7, 2023, Bonita E. Banes (“Bonni”) Defendants’ Attorney of Record’s Office Manager and Paralegal, was the sole person responsible for opening the law firm’s daily mail, looking at the law firm’s daily emails, directing all correspondence to the appropriate attorney and calendaring all upcoming court appearances.” (Trutanich Decl. ¶ 3.) “It did not come to my attention until on or about November 7, 2023 that Bonni Banes had been suffering from brain disease for several months. . . . Initially it looked like Bonni would recover from her brain cancer but unfortunately she succumbed to her disease on June 4, 2024. Trutanich and Associates has really struggled to find her replacement.” (Ibid.) “As a direct result of Bonita Banes’ failure to notify any of the Attorneys of Trutanich and Associates of the existence of Plaintiff, Dunn Investment Properties, Inc.’s Motion for Sanctions and her failure to calendar the hearing of that Motion on January 19, 2024, Defendants’ Attorneys of Record failed to file any opposition to or appear at the hearing on Plaintiff’s Motion. Without a filed opposition or appearance against Plaintiff’s motion for sanctions, the Court granted Plaintiff’s Motion for Sanctions.” (Trutanich Decl. ¶ 4.)

Plaintiff opposes the Motion on the grounds that it is untimely and that the mandatory relief provisions under Code of Civil Procedure section 473 subdivision (b) are inapplicable to the Court’s January 19, 2024, Order.

1)      Timeliness

“[T]he six-month limitations period of the mandatory and discretionary relief provisions of section 473(b) is either 182 days or six calendar months, whichever period is longer.” (Jimenez v. Chavez (2023) 97 Cal.App.5th 50, 53, see Code Civ. Proc., § 473.)

Here, the Court’s Order was entered on January 19, 2024, establishing the deadline of July 19, 2024, to file the Motion to Vacate under Code of Civil Procedure section 473, subdivision (b). The Moving Defendant filed the Motion on July 23, 2024, exceeding the statutory deadline.

Accordingly, the Court finds the Motion untimely and DENIES the Motion on this basis.

2)      Applicability of the Mandatory Relief Provisions

The pertinent text of subdivision (b) of Code of Civil Procedure section 473 provides:

“[T]he court shall ... 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.” (Underlines added.)

In The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993 (Urban), the Court of Appeal ruled this statute means what it says and says what it means, which resolves the issue: the statute covers only defaults, default judgments, and dismissals. The Urban case acknowledged and disagreed with earlier and contrary authority, which had expanded the reach of the statute to situations “analogous” to defaults, default judgments, and dismissals. Urban rejected these extensions of the statute as contrary to its plain language. (Urban, supra, at pp. 998–1001.)

Similarly, in Shayan v. Spine Care & Orthopedic Physicians (2020) 44 Cal.App.5th 167 (Shayan), the Shayan court agreed with Urban ruling, stating that “[t]he plain language of the statute is unambiguous and controlling. It would be a disservice to embroider this language with freeform extensions to “analogous” situations.” (Id. at p. 170.)

            Here, the Court’s January 19, 2024, Order granted sanctions for attorney fees and costs in favor of Plaintiff. This Order does not constitute a “default, default judgment, or dismissal” under the plain language of Code of Civil Procedure section 473 subdivision (b). Consequently, the mandatory relief provisions are inapplicable to the Court’s January 19, 2024, Order.

            Accordingly, the Court DENIES the Motion on this alternative ground.

CONCLUSION

Defendant Charles M. Johnson’s Motion to Vacate is DENIED.

Moving party to provide notice.