Judge: Frank M. Tavelman, Case: 23BBCV02014, Date: 2024-05-03 Tentative Ruling

Case Number: 23BBCV02014    Hearing Date: May 3, 2024    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.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify 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 argument is received.  

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

ALLEGATIONS: 

Matthew C. Moore (Plaintiff) brings this action against Kathleen F. Davis (Defendant). Plaintiff alleges causes of action for Wrongful Eviction, Theft, Civil Extortion, and Defamation as well as Property Damage. Plaintiff alleges that Defendant locked him out of a residential living he rented from Plaintiff and refused him access to his personal belongings. On March 4, 2024, Plaintiff entered default against Defendant.

Before the Court is Defendant’s Motion to Set Aside the Default. Defendant argues she was never personally served with process and, in the alternative, should be relieved from Default due to her excusable neglect. Defendant appears in pro per. Plaintiff opposes the motion and Defendant replies.

ANALYSIS: 

I.                    LEGAL STANDARD 

C.C.P. § 473.5

The Court notes that Defendant erroneously requests relief from default under C.C.P. § 473(d). Plaintiff argues she is entitled to relief under this code section because she was not properly served. C.C.P. § 473(d) governs the Court’s authority to correct clerical mistakes in judgments or orders it issues and does not relate to proper service on a party. It appears to the Court more likely that Defendant is seeking relief under C.C.P. § 473.5.

CCP § 473.5(a) provides: “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.”

C.C.P. § 473(b)

C.C.P. § 473(b) has both a discretionary relief provision and a mandatory relief provision. The discretionary provision of C.C.P. § 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 C.C.P. § 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 C.C.P. § 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

Proof of Service

Plaintiff’s proof of service reflects that personal service of the Summons and Complaint was effectuated on Defendant. The proof of service reflects personal delivery on Defendant at 10701 Walnut Drive, Shadow Hills, CA 91040 on January 7, 2024. As will be discussed below, Defendant disputes the representations of the process server.

C.C.P. § 473.5

Defendant first moves for relief on grounds that she was never properly served. Defendant essentially argues that she never received service such that she could be said to have actual notice of the action. As previously discussed, relief of this nature is governed by C.C.P. § 473.5.

“[A]ctual notice in section 473.5 means genuine knowledge of the party litigant…[A]ctual knowledge has been strictly construed, with the aim of implementing the policy of liberally granting relief so that cases may be resolved on their merits.’” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 547 [Citations Omitted].)

“[A] party can make a motion showing a lack of actual notice not caused by avoidance of service or inexcusable neglect . . .” (Trackman v. Kenney (2010) 187 Cal. App. 4th 175, 180.) “‘[I]t does not require a showing that plaintiff did anything improper…[T]he defaulting defendant simply asserts that he or she did not have actual notice’.” (Id.)

Defendant argues that the proof of service in this matter improperly shows that she was personally served, when in fact it was her friend Phil Swanson who spoke with the process server. (Davis Decl. ¶ 3, Swanson Decl. ¶ 3.) Defendant argues that she was not present at her home at the time of service and that the process server instead attempted to hand the documents to Swanson at her address. (Id.)

The Court finds the above arguments are irrelevant to relief under C.C.P. § 473.5.C.C.P. § 473(a) is concerned with whether service resulted in actual notice in time to defend the action. Here, Plaintiff clearly states she received notice of the action when she returned home to find the Summons and Complaint on the floor of her garage. (Davis Decl. ¶ 4.) Further, Plaintiff’s counsel attaches email communications from Defendant dating as early as September 6, 2023 showing that she was aware of a potential action. (Cordier Decl. Exh. 1.)  At the very least it appears that the attempt at personal service on January 7, 2024 was an extension of the communication between Defendant and Plaintiff’s counsel. Further, Defendant stated in her September 6, 2023 email that she needed further time to retain an attorney to negotiate settlement, further indicating her knowledge of the action by the time she found the Summons and Complaint. (Cordier Decl. Exh. 1.)

To the extent that Defendant believes the service was not proper, such belief does not affect the facts showing she had notice of the action. “It is axiomatic that strict compliance with the code's provisions for service of process is not required. (Ramos supra, 223 Cal.App.4th at 1443.) “[I]n deciding whether service was valid, the statutory provisions regarding service of process should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant.” (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313.) In essence, substantial compliance with the code’s requirements for service of process is sufficient. (Id.) Here, although Plaintiff’s service may have been procedurally deficient in some respects, it was sufficient to provide Defendant notice within the time to file a responsive pleading.

C.C.P. § 473

Defendant alternatively seeks relief under the discretionary provisions of C.C.P. § 473(b).

C.C.P. §473(b) provides that the Court may relieve a party from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect, which “shall be made within a reasonable time, in no case exceeding six months, after the judgment, or proceeding was taken.” (C.C.P. § 473(b).)

In the absence of an attorney affidavit of fault, the burden is on the moving party to show that the default could not have been avoided through the exercise of ordinary care. (Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58.) However, “when relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court. The Court has broad discretion to vacate a default and/or default. That discretion, however, “may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.” (Cruz v. Fagor America, Inc. (2006) 146 Cal.App.4th 488, 495.)

Excusable neglect under C.C.P. § 473(b) is whether “a reasonably prudent person under the same or similar circumstances” might have made the same error. (Los Rios Community College District (1986) 42 Cal.3d 270, 276.) Inadvertence is defined as lack of heedfulness or attentiveness, inattention, fault from negligence. (Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653, 656.) In addition, inadvertence and excusable neglect can be the result of a medical condition that clouds judgment and affects mental capacity. (See Noceti v. Whorton (2014) 224 Cal.App.4th 1062.)

The Court finds that Defendant has made a sufficient showing of excusable neglect to justify relief under C.C.P. § 473(b). While Defendant was aware of the action against her, her failure to render a responsive pleading appears to have resulted from the mistaken belief that service had not been properly effectuated. Defendant’s email to Plaintiff’s counsel indicates that she believed the service on Swanson was insufficient to apprise her of the suit such that she would need to file a responsive pleading. (Davis Decl. Exh. C.) Given Defendant’s lack of legal expertise, the Court views it as reasonable for her to assume that she need not file a responsive pleading until service had been “properly” effectuated.

Plaintiff’s argument that a mistake of law is insufficient to grant relief from default is not persuasive on this matter. The case that Plaintiff relies on in making this argument, McClain v. Kissler, is factually inapposite to the situation here. In McClain, the Court considered relief from default entered against an attorney in a breach of contract action. (McClain v. Kissler (2019) 39 Cal.App.5th 399.) The Court found that ignorance of the law could not serve as a basis for relief under C.C.P. § 473 where the evidence clearly demonstrated the attorney’s “mistakes of fact and law” were instead deliberate attempts to avoid responding to the pleadings. (Id. at 418.) Here, the Court is dealing with a Defendant in pro per and not a person admitted to the State Bar. While the law requires equal treatment of parties who are represented and those who are in pro per, the reality of the matter is that the Court cannot expect equal knowledge of the law from both parties. From the perspective of a person similarly situated, Defendant’s error was reasonable in light of her legal knowledge and her belief that service was not valid.

In short, the Court finds Defendant has demonstrated at least excusable neglect in her failure to file a timely responsive pleading. This showing, accompanied by the strong public policy in favor of granting relief, is sufficient to obtain relief under C.C.P. § 473(b). Accordingly, the motion to set aside default is GRANTED. Defendant is to file her Answer within 10 days.  The proposed answer attached to the Plaintiff’s motion must be filed with the court as a separate document.

Sanctions

Lastly, the Court addresses Plaintiff’s request for sanctions in the opposition. Plaintiff cites to C.C.P. § 473(c)(1)(A) which states:

Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following:

Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

Plaintiff states that sanctions are required to offset the costs of obtaining the default and opposing this motion. It appears that on April 1, 2024, Plaintiff’s counsel sent an email offering to stipulate to set aside the default on the condition that Defendant pay $700 to compensate for legal costs in obtaining the default. (Cordier Decl. Exh. 6.) It appears that Defendant rejected this stipulation on the mistaken belief that her request would not be subject to any penalties as it was made under C.C.P. § 473(d) and not C.C.P. § 473(b). (Reply. Exh. A.)

Given the representations of the parties, the Court finds some penalty is in order to compensate Plaintiff for the expenses incurred in pursuing Defendant’s default. While Plaintiff’s counsel submits estimations of time spent opposing this motion, there is no declaration as to time spent pursuing the default. (See Cordier Decl. ¶ 13.) In the Court’s experience, $375 would be sufficient to compensate Plaintiff for their efforts in obtaining the default after Defendant’s nonresponse. Accordingly, the Court enforces a penalty of $375 against Defendant, payable to Plaintiff within 30 days.

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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 

Kathleen F. Davis’s Motion to Set Aside Default came on regularly for hearing on May 3, 2024, 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.

THE COURT ENFORCES A PENALTY PURSUANT TO C.C.P. § 473(C)(1)(A) OF $375 AGAINST DEFENDANT, PAYABLE TO PLAINTIFF WITHIN 30 DAYS.

DEFENDANT IS TO FILE HER ANSWER WITHIN 10 DAYS.

IT IS SO ORDERED. 

DATE: May 3, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles