Judge: Deirdre Hill, Case: 22TRCV00942, Date: 2023-03-01 Tentative Ruling

Case Number: 22TRCV00942    Hearing Date: March 1, 2023    Dept: M

Hearing Date:                         March 1, 2023

Moving Parties:                      Defendant Michelle Dupont

Responding Party:                  Plaintiff Ralph-Gibson Community Property Trust

Motion to Vacate Default Judgment

            The court considered the moving and opposition papers.

RULING

            The motion is GRANTED.  The default entered on January 23, 2023 and the default judgment for possession entered on January 26, 2023 are set aside and vacated.  Defendant is ordered to file a responsive pleading within five days.

BACKGROUND

On October 5, 2022, plaintiff Ralph-Gibson Community Property Trust dated September 25, 1998, Jon D. Ralph and Patricia L. Gibson, as trustees filed a complaint for unlawful detainer against Michelle Dupont based on a three-day notice to pay rent or quit for 3007 The Strand, Hermosa Beach, CA 90254 based on monthly rent of $3,575 for the period April 1, 2022 through September 30, 2022.

On October 27, 2022, defendant (self-represented) filed a motion to quash service of summons for December 2, 2022.

On November 18, 2022, the court continued the hearing to January 18, 2023.  Plaintiff was to give notice.

On January 17, 2023, plaintiff filed the notice of continuance of hearing, indicating that defendant was served notice on December 1, 2022.

On January 18, 2023, the court denied the motion to quash service of summons and ordered defendant to file a responsive pleading within five days.  There was no appearance by defendant. 

On January 18 2023, plaintiff served defendant with notice of the ruling.

On January 23, 2023, plaintiff filed a request for entry of default and a default was entered.

On January 26, 2023, plaintiff filed a request for clerk’s judgment for possession, which was entered.

On January 30, 2023, plaintiff filed an application for writ of possession and a writ of execution was issued.

On February 2, 2023, defendant filed a notice of filing a “Petition for Writ of Mandate.”

On February 17, 2023, the court (Judge Tanaka) denied defendant’s ex parte application to vacate default judgment because of lack of notice.

On February 21, 2023, the court denied defendant’s ex parte application to vacate default judgment because defendant failed to establish proper notice.

On February 22, 2023, at the hearing on defendant’s ex parte application, the court noted that defendant was seeking to vacate default judgment and did not request motion to vacate default judgment, finding that a motion was required.  The court granted the ex parte to shorten time for a noticed motion.  The writ of possession was recalled and quashed.

LEGAL AUTHORITY

“The court may, upon 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. . . .”  CCP §473.

            “[T]he policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.”  Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 697 (citations and internal quotations omitted).

DISCUSSION

            Defendant Michelle Dupont (self-represented) requests that the court vacate the default and default judgment.

            She argues that the default and default judgment were prematurely entered, “their entry was an irregularity in the proceedings,” “void on its face,” and “prevented a fair trial.”  She contends that because the notice of ruling on the motion to quash was served by U.S. mail on January 18, 2023, plaintiff had five calendar days from the date of the notice of ruling, plus an additional three court days, under Civil [Procedure] Code §1013.  She asserts that she had until January 26, 2023 to serve a response.  Thus, defendant argues, the default was entered prematurely on January 23, 2023.  She also contends that she did not have notice of the hearing on the motion to quash on January 18 and that she did not receive notice of the ruling on the motion to quash until February 1.  She further asserts that she had no idea that a default was entered until February 16, 2023, when she received a notice to vacate on her door.

            In opposition, plaintiff argues that defendant failed to file an answer within the five days ordered by the court.

            The court rules as follows:  The court finds that defendant has not refuted that she was properly served notice of the hearing on the motion to quash on January 18, 2023.  Nevertheless, the court finds that the default and default judgment were entered prematurely.  On January 18, 2023, the court denied the motion to quash service of summons and ordered defendant to file a responsive pleading within five days (which is the time prescribed by CCP §1167.4(b)) and ordered plaintiff to give notice.  Plaintiff gave notice by U.S. mail on January 18, 2023.  

Under CCP §1019.5(a), “[w]hen a motion is granted or denied, unless the court otherwise orders, notice of the court’s decision or order shall be given by the prevailing party to all other parties or their attorneys, in the manner provided in this chapter, unless notice is waived by all parties in open court and is entered in the minutes.”  Under CCP §1013(a), “[i]n case of service by mail, . . . Service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail . . . .”  Thus, the responsive pleading was due by the end of the day on Monday, January 30, 2023 (five days plus five calendar days, which falls on a Saturday and then extended to “the next day that is not a holiday”).  See CCP §12a (computation of time where last day for performance of act is “holiday”).  The court notes that even if the due date was January 23, 2023, the default was entered prematurely on January 23, because the five days had not expired (which would have been 11:59 p.m. on January 23).  See CCP §586(a)4).  See also Butenschoen v. Flaker (2017) 16 Cal. App. 5th Supp. 10 (tenants’ motion to quash an unlawful detainer summons and the denial of their petition for writ of mandate challenging the ruling on the motion to quash extended their time to plead, with further extensions for notice by mail and from a Saturday to a Monday; the tenants had until the end of that Monday to respond to the complaint, and the trial court erred by entering a default judgment prematurely on that day, which it could not do before the time to file an answer or demurrer had expired).

            Accordingly, the motion is GRANTED.

            Plaintiff is ordered to give notice of ruling.