Judge: Frank M. Tavelman, Case: 22BBCV00182, Date: 2022-09-30 Tentative Ruling

Case Number: 22BBCV00182    Hearing Date: September 30, 2022    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

SECOND MOTION TO SET ASIDE DEFAULT

ALLEGATIONS:

Anthony Bouyer (“Plaintiff”) filed suit against Juliano Enterprises LLC (“Defendant”) on March 23, 2022, alleging a single cause of action for Violation of the UCRA.

HISTORY:

The Court received the Motion to Set Aside Default filed by Defendant on June 22, 2022; which did not meet the statutory requirements and was denied on July 22, 2022 without prejudice.  On August 17, 2022, MP filed a second request to set-aside the default.  On September 16, 2022, RP filed an opposition and on September 26, 2022 MP filed a reply.  In MP’s reply, they raise new issues concerning a potential medical issue concerning RP, this issue was not previously raised.  Plaintiff objects.

RELIEF REQUESTED:

Defendant moves for an order setting aside the entry of default against Defendant.  Plaintiff objects and seeks sanctons.

ANALYSIS:

I.          LEGAL STANDARD – 473(b)

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.

II.        MERITS

Objections:

RP, the Plaintiff, objects to MP’s reply as introducing new evidence.   MP, the Defendant, provides no legal authority in their reply that supports the limitation concerning replies.  Replies are not to include newly asserted evidence or arguments but are to respond to the opposition. 

The purpose of a reply brief is to address arguments made in the Opposition; it may not be used to raise new arguments, present new authorities, or introduce new evidence. Points raised for the first time in a reply brief ordinarily will not be considered because such consideration would either deprive respondent of an opportunity to counter the argument or require the effort and delay of additional brief by permission. See, e.g., Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1477 ("Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief[.]").

The objection is sustained.

RP then objects that the declaration accompanying the reply brief was never served upon them.  The filed proof of service appears to support this contention.   Despite the lack of service, counsel will have an opportunity to review the declaration and make additional arguments in Court.   The Court will sustain the objection, but declines to strike the declaration.  

In the first request for relief, Defendant asserts that he did not timely respond to the Complaint in the instant action because Defendant’s counsel was only retained after the answer filing deadline. Defendant thus requests mandatory relief pursuant to CCP § 473(b).  Now Defendant raises for the first time in a reply brief that he had medical conditions, was having check pains, difficulty breathing and had a surgery scheduled.   Nevertheless, he felt well enough to travel outside the United States for seventeen days.  He claims he was in no condition to think about hiring a layer, yet he managed to contact one prior to his departure.  He then claims he contacted a few other attorneys, but they wanted to settle the case not litigate it.   The Court is not persuaded, months after the initial request to vacate the default, and then only in a reply brief does Defendant raise the medical basis for requesting relief. 

Despite claiming he was too ill to focus on seeking counsel, he contacted one attorney who advised he was too busy, then sought counsel of others that wanted to settle.   He then arranged for a flight outside the United States for 17 days, despite having serious health conditions.   Defendant does not supply any declaration from a treating physician nor any documentation to support his claim.

MP’s third objection is that RP filed the reply one day late, on September 23^rd instead of September 22^nd.   The Court sustains the objection, however, will not strike the reply as the delay is deminimus and does not deny MP of due process.

The initial motion was denied as it failed to establish attorney neglect because counsel was not retained until after the default, or any other statutory basis.   Likewise the assertions in this second motion do not establish “mistake, inadvertence, surprise, or excusable neglect.” As mandated by statute.   This Court always prefers to have matters tried on their merits, but absent a proper statutory based assertions that are not properly supported, the basis to grant relief has not been met.

The Defendant has failed to provide a sufficient basis to vacate the default, and as such the request to do so will be denied without prejudice.   If in a timely manner as provided by statute the Defendant can make the proper showing, the Defendant may file a subsequent request to vacate the default judgment.   Furthermore, the Court will not accept reply briefs that allege new arguments and facts, nor declaration not properly served on Plaintiff.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Juliano Enterprises LLC’s Motion to Set Aside Default came on regularly for hearing on September 30, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO SET ASIDE DEFAULT IS DENIED WITHOUT PREJUDICE.

IT IS SO ORDERED.

DATE:  September 30, 2022                          _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles