Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is an unlawful detainer action.  Plaintiff Playa Villas Malibu owns the property located at 12665 Village Lane #2332, Playa Vista, California (the “Property”).  Plaintiff entered into a written 13 month lease with Defendant Zeynep Atesoglu to rent the Property.  Defendant failed to pay rent of over $37,000.  

Trial was set for October 31, 2024.  On October 31, 2024, Defendant failed to appear.  Accordingly, the Court ordered his answer stricken and entered default judgment against Defendant.   

This hearing is on Defendant’s motion to set aside default.  Defendant claims that the notice of trial date was not mailed or e-mailed to his counsel, and his counsel mistakenly failed to check the Court system for any docket entries.  Accordingly, counsel failed to appear for trial.     

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 discretionary 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.4th 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.)   

However, this policy cannot prevail over competing policies that “favor getting cases to trial on time, avoiding unnecessary and prejudicial delay, and preventing litigants from playing fast and loose with the pertinent legal rules and procedures.” (Gardner v. Superior Court (1986) 182 Cal.App. 3d 335, 339.)  While “courts are liberal in relieving parties of defaults caused by inadvertence or excusable neglect,” they “do not act as guardians for incompetent parties or parties who are grossly careless as to their own affairs. There must be rules and regulations by which rights are determined and under which judgments become final.” (Daher v. American Pipe & Constr. Co. (1968) 257 Cal.App.2d 816, 820–821.) This is a rule of necessity, for “[w]hen inexcusable neglect is condoned even tacitly by the courts, they themselves unwittingly become instruments undermining the orderly process of the law.” (Don v. Cruz (1982) 131 Cal.App.3d 695, 701.)   

DISCUSSION 

Defendant’s motion to set aside default is timely.  Default was entered on November 5, 2024, and Defendant filed his motion on November 19, 2024, within six months of the entry of default.   

Plaintiff argues that mandatory relief is not available because mandatory relief does not apply absent an actual default, default judgment or dismissal, and a judgment entered after a party failed to appear at trial is not a default.  While Plaintiff is correct that mandatory relief does not apply to vacate a judgment taken after a party fails to appear at trial, the argument does not apply here because Defendant is seeking discretionary, not mandatory, relief.  (Motion at 3.) 

Plaintiff next argues that discretionary relief is not available because Defendant has not shown that a judgment has been taken against him through mistake, inadvertence, surprise, or excusable neglect.  The Court agrees.   

The burden of showing that the default was entered through mistake, inadvertence, surprise, or excusable neglect is on the moving party, and in the absence of that showing, the default may not be set aside. (Luz v. Lopes (1960) 55 Cal.2d 54, 62.)  Unless in arranging for his or her defense, the party exercises such reasonable diligence as a person of ordinary prudence usually bestows on important business, a motion for relief under Section 473(b) will be denied. (Id.; Caldwell v. Methodist Hospital (1994) 24 Cal. App. 4th 1521, 1525.)  

In this case, Defendant’s counsel has not met his burden of demonstrating mistake, inadvertence, surprise, or excusable neglect.  Defense counsel was served with Plaintiff's Request to Set Case for Trial-Unlawful Detainer and Proposed Jury Trial Documents, effectively putting him on notice that trial was approaching.  On October 14, 2024, the Court set the trial for October 31, 2024, and there is a certificate of mailing showing the notice of trial setting was mailed to counsel’s office.  Counsel does not dispute that the certificate of mailing contains his correct mailing address.  Nonetheless, defense counsel states he did not receive notice of the trial via mail or email, and he failed to check the court system.  The Court does not credit these claims, and concludes Defendant failed to meet its burden of proof.  Accordingly, the Court denies Defendant’s motion to set aside default.  

Alternatively, Defendant requests that the Court stay the lockout.  Code Civ. Proc. § 918 empowers the Court to grant a discretionary stay of any judgment.  The Court denies a stay of the judgment.  Defendant has not stated a basis to justify the stay.  Meanwhile, a stay would prejudice Plaintiff as Defendant continues to live on the Property without paying any rent.   

CONCLUSION 

For the foregoing reasons, the Court DENIES Defendant’s motion to set aside default.   

 

DATED:  December 20, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court