Judge: Gary I. Micon, Case: 22CHCV00778, Date: 2024-02-06 Tentative Ruling

Case Number: 22CHCV00778    Hearing Date: February 6, 2024    Dept: F49

Dept. F-49

Date: 2-6-24

Case # 22CHCV00778

Trial Date: N/A

MOTION TO VACATE AND/OR SET ASIDE REQUEST FOR ENTRY OF DEFAULT

MOVING PARTY: Defendants Chatsworth Garden Apartments, LLC and Parkville, LLC

RESPONDING PARTY: Plaintiffs Ivan Medina Cebreros, et al.

RELIEF REQUESTED

Defendants are requesting that the Court enter an order setting aside the request for entry of default entered against them

SUMMARY OF ACTION

This case is for a breach of warranty of habitability and other related causes of action filed by Plaintiffs Ivan Medina Cebreros, et al., (Plaintiffs) on September 22, 2022. Defendants Parkville, LLC and Chatsworth Gardens Apartments, LLC (Defendants) were served on October 12, 2022, and October 14, 2022. On December 8, 2022, a default was entered against Defendants because they had not answered Plaintiffs’ complaint.

From January through May 2023, the parties met and conferred regarding the default, but were unable to come to a resolution. Defendants’ current motion to set aside and/or vacate the default was filed on September 15, 2023. Plaintiffs’ opposition was filed late on January 25, 2024. Defendant’s reply was filed on January 30, 2024.

RULING: Motion to set aside default is granted.

CCP Section 473(b) states as follows: 

Notwithstanding any other requirements of [§ 473(b)] 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…unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. 

The law favors hearings on the merits, so any doubts as to the application of section 473 should be resolved in favor of the party seeking relief from default. (See Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1139-1140.)

Plaintiffs argue in their opposition that Defendants’ motion is untimely because it was filed more than six months after default was entered. Default was entered on December 8, 2022, and Defendants did not file their motion to set aside or vacate default until September 15, 2023, more than nine months after default was entered. However, CCP § 473(b) requires that the motion to set aside or vacate default be filed “no more than six months after entry of judgment.” No judgment has been entered yet, only the default. The six month time period runs from the entry of default judgment, not the original default. (Sagasawara v. Newland (1994) 27 Cal.App.4th 294, 297.) Therefore, Defendants’ motion is timely.

Next, Defendants have provided an attorney affidavit indicating that the failure to file a timely answer was due to their attorney’s mistake, inadvertence, or neglect. The declaration from Defendants’ attorney indicates that he had mis-calendared the date that the answer was due, and that this was the mistake that led to the failure to file an answer. (Safarian Decl., ¶ 4.)

Plaintiffs have failed to show how they would be prejudiced if the entry of default is set aside. Further, any doubts regarding the application of Section 473(b) should be resolved in favor of the party seeking relief. The Court will grant Defendants’ motion.

Plaintiffs also argue in their opposition that Defendant should be required to pay a penalty for the relief from default based on CCP § 473(c)(1)(A). However, CCP § 473(c)(2) states that “However, where the court grants relief from a default or default judgment pursuant to this section based upon the affidavit of the defaulting party’s attorney attesting to the attorney’s mistake, inadvertence, surprise, or neglect, the relief shall not be made conditional upon the attorney’s payment of compensatory legal fees or costs or monetary penalties imposed by the court or upon compliance with other sanctions ordered by the court.”

The Court is granting relief from default based on Defendants’ attorney’s mistake, inadvertence, or neglect. Therefore, no penalty shall be assessed under CCP § 473(c). However, CCP § 473(b) states that “[t]he court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” Plaintiffs are requesting $1,000.00 in attorney’s fees and costs. (Oronsaye Decl., ¶ 12.) Plaintiff’s attorney does not, however, indicate how he came up with this amount. Nonetheless, the Court finds that this is a reasonable amount given the nature of the motion.

Defendants’ motion to set aside and vacate entry of default is granted. Defendants’ answer is deemed filed as of the date of this order.

Defendants’ attorney is ordered to pay $1,000.00 to Plaintiffs’ counsel.

Moving party to give notice.