Judge: Frank M. Tavelman, Case: 22BBCV01013, Date: 2023-08-16 Tentative Ruling

SUBMITTING ON THE TENTATIVE
Generally, the Court will post tentative rulings prior to a hearing; however, the Court does not always do so.  If the parties wish to avoid a court appearance and submit on the tentative ruling, then all counsel must confer and agree to do so.   Each counsel must then contact the Court and advise they have spoken to opposing counsel and will submit on the tentative.  All counsel seeking to submit on a tentative must call Dept A no later than 8:45 a.m. on the hearing day or in lieu may indicate the party is submitting during calendar check-in. Notice of the ruling must be served as indicated in the tentative. If any party declines to submit on the tentative ruling, then all parties should appear at the hearing in person or remotely.
 

Case Number: 22BBCV01013    Hearing Date: August 16, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO SET ASIDE DEFAULT

ALLEGATIONS: 

On May 5, 2023, Nissan-Infinity LT a division of Nissan Motor Acceptance Corporation (“Plaintiff”) filed a verified complaint for breach of contract and claim and delivery as related to the sale and financing of an automobile.  On July 7, 2023, default was entered against Defendants.

Moving Parties now seek to set aside the default pursuant to Code of Civil Procedure §§ 473(b).

HISTORY: 

On May 5, 2023, Plaintiff filed the above-captioned Complaint in this court. Plaintiff first filed their Proof of Service of Summons on June 1, 2023. Plaintiff reports that Defendant was served through substituted service on May 22, 2023, on a non-party. On May 2, 2023, Plaintiff also filed a Request for Entry of Default. On July 7, 2023, Plaintiff filed a Request for Entry of Default against Defendants. Defendants now asks the court to vacate the default and accept Defendant’s Answer filed with the Motion to Vacate Default.

Defendants assert that they received the complaint and contacted an individual they believe was a lawyer.   They paid him $4,500.00, but that individual was not in fact a lawyer and did nothing to preserve Defendants rights. 

Plaintiff filed no opposition.

ANALYSIS: 

I.                    LEGAL STANDARD 

Plaintiff seeks relief pursuant to Code of Civil Procedure § 473(b). Code of Civil Procedure § 473(b) has both a discretionary relief provision and a mandatory relief provision. (Jackson supra, 32 Cal. App. 5th 166, at 173.)  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 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.)

California Rules of Court, rule 8.54(c), “A failure to oppose a motion may be deemed a consent to the granting of the motion.”

II.                 MERITS

Polaris argues that the default should be set aside on grounds of mistake or inadvertence pursuant to the discretionary provisions of Code of Civil Procedure § 473(b).   In this instance the mistake or inadvertence was in hiring a person who falsely represented themselves as a lawyer.

Code of Civil Procedure § 473(b) requires the moving party submit a copy of the answer or other pleading to be filed therein, otherwise the application shall not be granted. Defendant filed a copy of its proposed answer with the motion.

Given the above, Defendants’ unopposed motion to set aside default is GRANTED. 

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RULING:

ORDER 

Jessie Sanchez and Tania Sanchez’s Motion to Set Aside Default came on regularly for hearing on August 16, 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 SET ASIDE DEFAULT IS GRANTED.  DEFENDANTS ANSWER ATTACHED TO THE MOTION TO SET ASIDE DEFAULT SHALL BE DEEMED THE ANSWER TO THE COMPLAINT.

ALL EXISTING COURT DATES TO REMAIN.

DEFENDANT TO GIVE NOTICE, UNLESS ALL PARTIES WAIVE NOTICE.

IT IS SO ORDERED. 

DATE:  August 16, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

      Superior Court of California 

        County of Los Angeles