Judge: Frank M. Tavelman, Case: 22BBCV00703, Date: 2023-12-01 Tentative Ruling

Case Number: 22BBCV00703    Hearing Date: December 1, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO SET ASIDE DEFAULT

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Arya Youabian (“Plaintiff”) brings this action against BMW of North America, LLC and Century West BMW, LLC (“Century West”). Plaintiff alleges Century West sold her a vehicle which was defective in violation of the Songe-Beverly Consumer Warranty Act.  On December 15, 2022, the Court entered default against Century West for failure to file a responsive pleading. On June 5, 2023, the Court entered default judgment against Century West.

Century West now moves to vacate the default judgment and set aside the default pursuant to Code of Civil Procedure (“C.C.P.”) § 473. Century West states the default and default judgment were entered as a result of Plaintiff’s initial failure to properly serve Century West and subsequent miscommunication between counsel.

ANALYSIS: 

I.                    LEGAL STANDARD 

Code of Civil Procedure § 473(b) has both a discretionary relief provision and a mandatory relief provision. The discretionary provision of Code of Civil Procedure § 473(b), in pertinent part, reads as follows:

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…

The mandatory provision of Code of Civil Procedure § 473(b) reads, in pertinent part, as follows:

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. 

The general underlying purpose of Code of Civil Procedure § 473(b) is to promote the determination of actions on their merits. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830.) Under this statute, an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (C.C.P., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

II.                 MERITS

Century West now asks that the Court enter an order setting aside the default against them.

The Court first notes that Century West does not include a copy of its proposed responsive pleading. C.C.P. § 473(b) provides in relevant part “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…” As Century West has failed to attach such a responsive pleading, the Court is unable to grant the motion as submitted.   The Court notes that similar language is included in C.C.P. § 473.5(b), discussed below.

Century West also fails to provide separate notice of motion stating the grounds under which it seeks relief in violation of California Rules of Court Rule 3.1110. Century West states in its brief memorandum that it seeks relief under C.C.P. § 473, however the declaration of its counsel indicates other grounds. Century West’s counsel, James G. Lewis, states that the default, entered December 15, 2022, was the result of improper service. (Lewis Decl. ¶¶ 1-2.)  

Motions to Set Aside a default for lack of actual notice are governed by C.C.P. § 473.5 and have separate requirements than those under C.C.P. § 473. Additionally, the timing considerations between the two statutes are separate. C.C.P. § 473 motions must be brought within six months of the entry of default while C.C.P. § 473.5 motions must be filed within two years after default judgment or 180 days after service. (C.C.P. § 473.5(a)(i-ii).)

In summary, the Court cannot ascertain upon what grounds Century West seeks relief from the default and if those grounds are separate from those upon which they seek to vacate the default judgment. Further, Century West includes no proposed responsive pleading as required by C.C.P. § 473(b) and § 473.5(b). Accordingly, the motion to set aside is DENIED without prejudice.   The Court does note that the motion was unopposed; however, the motion is statutorily deficient regardless of non-opposition.  The parties may opt to stipulate to set aside the default and the timing for a responsive pleading rather than filing a code compliant motion; however, that is an option to be determined by the parties.

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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 

Century West BMW, LLC’s Motion to Set Aside Default came on regularly for hearing on December 1, 2023, 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 VACATE DEFAULT JUDGMENT IS DENIED WITHOUT PREJUDICE.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE: December 1, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles