Judge: Edward B. Moreton, Jr, Case: 24SMCV00154, Date: 2024-11-20 Tentative Ruling

Case Number: 24SMCV00154    Hearing Date: November 20, 2024    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

BACKGROUND

This case arises from a landlord tenant dispute.  Plaintiff Shlomo Asoulin sued Defendant Samajo Properties, LLC for supposed uninhabitable living conditions.  Plaintiff alleges that Defendant then filed an unlawful detainer action claiming rent in excess of the parties’ agreement, in retaliation for Plaintiff’s suit. 

The operative complaint alleges claims for intentional infliction of emotional distress, negligent misrepresentation and violation of Civil Code Section 1942.5.

The complaint was personally served on July 12, 2024.  Defendant did not respond within 30 days.  Accordingly, a default was entered on September 19, 2024. 

This hearing is on Defendant’s motion to set aside default.  Defendant argues that his client mistakenly believed that no response was necessary because he erroneously believed the action to be either stayed and/or legally moot due to the judgment for possession and termination of the tenancy previously obtained by Defendant against Plaintiff in Los Angeles Superior Court Case No. 23SMUD0156 and the stay issued in connection with Los Angeles Superior Court Case No. 23SMCV0554, which stay arose from Asoulin’s Chapter 7 bankruptcy, Case No. 2:24-bk-10036-NB.  By the time Defendant retained counsel, the time to respond had already expired.

And when counsel filed an answer, default had already been entered, although counsel mistakenly believed the answer had been filed before default because it was accepted by the clerk of the court and he received a conformed copy of the answer from the court.  Upon checking the court docket, however, counsel discovered that the request for entry of default had been entered on September 19, 2024, followed by the filed answer on September 20, 2024.  There was no opposition filed as of the posting of the tentative ruling. 

LEGAL STANDARD

Code Civ. Proc. §473, subd. (b) provides for two distinct types of relief from a default -- commonly differentiated as “discretionary” and “mandatory.”  “Under the discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,” the court has discretion to allow relief from default.  Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court must vacate any ‘resulting default judgment or dismissal entered.’”  (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 615-616.) 

Applications seeking relief under the mandatory provision of §473 must be “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., §473, subd. (b).)  The mandatory provision further adds that “whenever relief is granted based on an attorney’s affidavit of fault [the court shall] direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Id.) 

The application for relief must be made no more than six months after the judgment, dismissal, order, or proceeding was taken.  (Id.)  And the application must be “accompanied by a copy of the answer or other pleading proposed to be filed therein”.  (Id.)

“It is settled that the law favors a trial on the merits. . . and therefore liberally construes section 473.”  (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4^th 1474, 1477.)  “Doubts in applying section 473 are resolved in favor of the party seeking relief from default. . . and if that party has moved promptly for default relief, only slight evidence will justify an order granting such relief.”  (Id. at 1477-78.)

DISCUSSION

Defendant’s motion to set aside default is timely.  Default was entered on September 19, 2024, and Defendant filed its motion on October 23, 2024, within six months of the entry of default. 

Further, mandatory relief is warranted based on counsel’s affidavit of fault.  Counsel was retained on September 18, 2024.  At the time he was retained, the time to respond to the Complaint had already expired.  He should have filed an answer immediately.  He waited to try to secure an agreement from Plaintiff to extend the time to respond.  But Plaintiff provided no contact information beyond a P.O. Box.  By the time counsel filed the answer two days later, on September 20, 2024, the default had already been entered.  While his delay appears excusable, mandatory relief is available even for inexcusable neglect.  (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 al.App.4^th 432, 438.) 

Accordingly, given the strong policy favoring resolution of cases on their merits and that only very slight evidence is required to justify relief from default, the Court grants the motion to set aside default. 

CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant’s motion to set aside default. The Court sets a Case Management Conference on January 23, 2025 at 9:00 a.m.

DATED:  November 20, 2024                                            ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court