Judge: Frank M. Tavelman, Case: 22BBCV01144, Date: 2023-04-23 Tentative Ruling

SUBMITTING
ON THE TENTATIVE

The Court tries to post tentative rulings prior to any
hearing on many matters, but not all.  If
the parties wish to submit on the tentative ruling and avoid a court
appearance, all counsel must confer and agree to do so.   Each counsel must contact the court and
advise they are submitting on the matter, that they have spoken to opposing
counsel who has indicated they too are submitting and will be calling the
court. All submitting counsel must call Dept A by 9:00 a.m. on the day of the
hearing and state that all parties will submit on the tentative ruling or in lieu
may indicate the party is submitting during calendar check-in and notice of the
ruling must be served as indicated in the tentative. If any party declines to
submit on the tentative ruling, then no telephone call is necessary, and all
parties should appear at the hearing in person or remotely.

Case Number: 22BBCV01144    Hearing Date: April 23, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO SET ASIDE DEFAULT JUDGMENT

ALLEGATIONS: 

On December 7, 2022 Lauren Moseley (“Plaintiff”) filed suit against Polaris Property Management, LLC, Pinnacle Property Management, LLC, Pacific Oak Holding Group, LLC (“Pacific Oak”), Cushman & Wakefield, Noho Commons Pacific Owner, LLC (collectively “Defendants”) in connection with an incident in which Plaintiff’s property was allegedly destroyed. The Complaint contains causes of action for (1) Negligence, (2) Conversion, and (3) Violations of California Rev. & Tax Code § 23301.

On January 31, 2023, default was entered against Pacific Oak. Pacific Oak now moves to set aside the default pursuant to Code of Civil Procedure (“CCP”) §§ 473(b) & 425.11(c).

HISTORY: 

On March 16, 2023, Pacific Oak filed this motion to set aside default judgment. No Opposition was filed by Plaintiff.  

ANALYSIS: 

I.                LEGAL STANDARD 

Plaintiff seeks relief pursuant to CCP § 473(b) which has both discretionary and mandatory relief provisions. (Jackson v. Kaiser Foundation Hospitals (2019) 32 Cal. App. 5th 166, at 173.)  CCP §473(b)’s discretionary provision, 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…

CCP §473(b)’s mandatory provision 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. 

CCP §473(b)’s general purpose is promoting 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. (CCP, § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

Code of Civil Procedure § 425.11 requires a statement of damages be issued by Plaintiff before default can be entered in a personal injury matter.

II.              MERITS

Pacific Oak argues that the default should be set aside on grounds of excusable neglect pursuant to the discretionary provisions of CCP § 473(b).

On December 13, 2022, notice of this action was personally served on Pacific Oak’s agent for service Registered Agents Solutions, Inc. (“RASI”). Pacific Oak states that on December 13, 2022, RASI forwarded this notice to Pacific Oaks’ Senior Corporate Accountant, Bridgit Brannon (“Brannon”), via email. (Brannon Decl. ¶ 5.) Pacific Oak states Brannon viewed the email but could not view the attachment because of technical issues suffered by the office. (Id. ¶ 6.) Pacific Oak states Brannon received weekly emails from RASI but had never received notice of a lawsuit from them before. (Id ¶ 4.) Pacific Oak states nothing in the body of the email indicated it was a notice of lawsuit (Id. ¶ 5.) Pacific Oak states it did not become aware of the lawsuit until they were sent notice of default in the mail on February 6, 2023. (Mot. pg. 4.) Pacific Oak states Brannon only opened the attachment when asked about the default letter by Senior Vice President Michael Potter on February 24, 2023. (Brannon Decl. ¶ 8.)

“The definition of excusable neglect is defined as ‘neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.’[citation].” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293.) “There must be more than the mere failure to discover a fact; the party seeking relief must establish the failure to discover the fact in the exercise of reasonable diligence.” (Id.)

Here, the declaration of Brannon attests to excusable neglect. Brannon states she was unable to open the attachment from RASI because of technical issues and forgot about the attachment after the technical issue was resolved. (Brannon Decl. ¶5, 7). Brannon also states she received frequent emails from RASI, none of which were time sensitive, and never received notice concerning any lawsuits (Brannon Decl. ¶¶ 3,4)The Court is satisfied Pacific Oak’s failure to respond timely was the result of excusable neglect.

Pacific Oak had a system in place to receive notice of lawsuits from its registered agent. (Crisler Decl. ¶5) Pacific Oak also immediately contacted Plaintiff’s counsel upon learning of the suit. (Crisler Decl. ¶ 6.)  Pacific Oak’s actions indicate reasonable diligence.

CCP § 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. Pacific Oak attaches a copy of its Proposed Answer as Exhibit B to the motion.

Given the above, Pacific Oak’s unopposed Motion to Vacate Default is GRANTED.  

As the motion is granted on grounds of CCP § 473(b), the Court need not address Pacific Oak’s argument of failure to issue a statement of damages pursuant to Code of Civil Procedure § 425.11.

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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 

Pacific Oak Holding Group, LLC’s Motion to Set Aside and Vacate Default came on regularly for hearing on April 28, 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 AND VACATE DEFAULT  IS GRANTED. 

PACIFIC OAK HOLDING GROUP, LLC TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  APRIL 28, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles