Judge: Frank M. Tavelman, Case: 24STCV00744, Date: 2024-06-21 Tentative Ruling

Case Number: 24STCV00744    Hearing Date: June 21, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO SET ASIDE

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: 

Christina and Gene Chung Ching (Plaintiffs) bring this action against Obsidian Development, LLC (Defendant). Plaintiffs alleges that Defendant was hired to construct a quadraplex on a property they own. Plaintiffs further allege that Defendant deficiently constructed the building in violation of code and in breach of the parties’ contract.

On March 15, 2024, default was entered against Defendant.

Before the Court is a Motion to Set Aside Default brought by Defendant. Plaintiffs oppose the motion; Defendant has filed no reply.

ANALYSIS: 

I.                    LEGAL STANDARD 

Code of Civil Procedure § 473(b) has both a discretionary relief provision and a mandatory relief provision. (Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32 Cal.App.5th 166, 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 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 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

C.C.P. § 473(b) provides in part that, “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…” Upon review of Defendant’s moving papers, the Court is unable to locate a proposed responsive pleading. As Defendant has included no proposed responsive pleading, the motion must be denied as a matter of statute. Given that this denial comes by way of procedural defect, the Court denies the motion without prejudice.

Accordingly, the Motion to Set Aside Default is DENIED without prejudice.

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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 

Obsidian Development, LLC’s Motion to Vacate came on regularly for hearing on June 21, 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 DENIED WITHOUT PREJUDICE.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFFS TO GIVE NOTICE.  

IT IS SO ORDERED. 

DATE:  June 21, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles