Judge: David B. Gelfound, Case: 22CHCV00821, Date: 2024-03-08 Tentative Ruling

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Case Number: 22CHCV00821    Hearing Date: March 8, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO SET ASIDE DEFAULT (C.C.P. ¶ 473(b))

Motion filed: 12/5/23

MOVING PARTY: Defendants Sanjiv Jain and Shubha Jain

RESPONDING PARTY: Plaintiffs Surjit Multani and Amrita Multani (collectively, “Plaintiffs”) 

NOTICE: ok 

RELIEF REQUESTED: An order setting aside the Default and Default Judgment if entered.

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

On October 5, 2022, Plaintiffs initiated the present action against Defendants Sanjiv Jain, Shubha Jain (collectively, “Defendants”), and all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the Complaint adverse to Plaintiff’s title, or any could on Plaintiffs’ title thereto, and Does 1 through 50.  

On August 21, 2023, Plaintiffs filed their operative First Amended Complaint (“FAC”), alleging the following causes of action: (1) Breach of Contract; (2) Fraud; (3) Preliminary and Permanent Injunction; and (4) Declaratory Relief.

On October 17, 2023, Plaintiffs filed a Request for Entry of Default, which was entered on the same day. However, no Judgment of Default is shown in the case files.

On December 5, 2023, Defendants filed the instant Motion to Set Aside Default (the “Motion”).

On February 28, 2024, Plaintiffs opposed the Motion. Subsequently, on March 1, 2024, Defendants replied.  

ANALYSIS

Under Code of Civil Procedure, section 473, subdivision (b), an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

            Here, the Default against Defendants was entered on October 17, 2023, and the instant Motion was filed on December 5, 2023, which falls within the six-month time limit under Code of Civil Procedure section 473 subdivision (b).

Moreover, the Motion is accompanied by Defendants’ counsel’s declaration, stating that the entry of default took them by surprise as negotiations were ongoing with Plaintiffs regarding setting a mediation (Mot., 4, Joshi Decl., ¶¶ 7-8), and Plaintiffs counsel did not provide notice of taking Default. (Joshi Decl., ¶ 9.)

The Court notes that it is a settled rule that by taking a default without giving notice, counsel took the risk that the trial court would grant relief from the default (Pearson v. Continental Airlines (1970) 11 Cal.App.3d 613, 619), however, the failure to notify did not require the court to grant relief. (Bellm v. Bellia (1984) 150 Cal.App.3d 1036, 1038.)

Nevertheless, the Court finds that Defendants’ neglect in failing to provide an Answer due to the ongoing negotiation with Plaintiffs regarding setting a mediation is excusable.

Furthermore, Plaintiffs acknowledge that they have no objection to setting aside the Default, although they argue that “the order should be conditioned on Defendants’ filing an Answer to FAC within 20 days.” (Opp’n., at 2, ¶ 8.)

Accordingly, the Court GRANTS the Motion to Set Aside Default entered on October 17, 2023, against Defendants. Additionally, the Court exercises its discretion under Code of Civil Procedure section 437 subdivision (a), allowing Defendants to file their answer or other appropriate pleadings within 10 days of the hearing. (Code Civ. Proc., § 473, subd. (a)(1) [“The court may, ... upon like terms, enlarge the time for answer or demurrer.”])

CONCLUSION

Defendants’ Motion to Set Aside Default is GRANTED.

Defendants are ordered to file an Answer or other appropriate pleadings within 10 days.

Moving party is ordered to provide notice of this order.