Judge Gary I. Micon, Case Number: 23CHCV03043, Date: 2024-05-17 Tentative Ruling

Judge: Gary I. Micon, Case: 23CHCV03043, Date: 2024-05-17 Tentative Ruling

Case Number: 23CHCV03043 Hearing Date: May 17, 2024 Dept: F43

Dept. F43

Date: 5-17-24

Case #23CHCV03043, Oakridge Family Homes, LP vs. Karina Hernandez, et al.

Trial Date: N/A

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

MOVING PARTY: Defendants Karina Hernandez and Leilani Hernadez

RESPONDING PARTY: Plaintiff Oakridge Family Homes, LP

RELIEF REQUESTED

Defendants are requesting that the Court enter an order vacating the default and judgment entered against them.

RULING: Motion denied.

SUMMARY OF ACTION

This is a failure to pay rent case filed by Plaintiff Oakridge Family Homes, LP (Plaintiff) on October 10, 2023. On August 26, 2023, the Notice to Pay Rent or 30 Days to Quit was served on Defendants Karina Hernandez and Leilani Hernandez (Defendants). The Notice expired on September 26, 2023.

Plaintiff filed proofs of personal and substituted service on November 15, 2023, indicating that Defendants were served on November 6, 2023. Default was entered against Defendant Karina Hernandez on January 11, 2024, because her answer was stricken due to her failure to appear. Judgment for unlawful detainer was entered by default against both Defendants on January 26, 2024, and Plaintiff reobtained possession of the premises.

Defendants filed their motion to vacate default and default judgment in pro per on March 28, 2024. Plaintiff filed its opposition to their motion on April 26, 2024. No reply has been filed.

ANALYSIS

CCP Section 473(b) states as follows:

“The court may, upon any terms as may be just, 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. 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 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.)

Defendants’ motion appears to argue that they had technical difficulties with the remote appearance application and were unable to attend the hearing, so default was entered against them for their nonappearance. Based on this, it would appear that Defendants are arguing that the default should be vacated due to excusable neglect.

As for Defendants’ claims regarding technical issues preventing them from attending the January 11 hearing, Defendant Karina Hernandez filed an ex parte application to stay execution of judgment on March 8. In her declaration in support of that application, Paragraphs 10 and 11, she mentions the January 11 hearing, but simply states that she missed it. The preceding paragraphs of her declaration make it seem like she missed the hearing because of stress related to her grandchild. Defendant Leilani Hernandez was served back in November 2023 and never appeared until after judgment was entered, by way of the March ex parte application to stay execution of judgment, long after default had been entered against her. The technical problem issue was not raised until two months after the January 11 hearing.

It appears that Defendant Karina Hernandez’s reasons for missing the January 11 hearing have changed, and no reason is given for Defendant Leilani Hernandez’s failure to file an answer or otherwise appear until the filing of the March ex parte application. Based on this, Defendants have not sufficiently demonstrated that the default was entered against them due to inadvertence, surprise, mistake, or excusable neglect. Defendants’ motion is denied on this basis.

Alternatively, Plaintiff argues that because a writ of possession was issued and it has retaken possession of the property, then there is no remedy for Defendants post-lockout. Plaintiff cites a couple of cases that stand for the proposition that a court cannot “undo” a sheriff executing on the judgment for possession. (See Cardenas v. Noren (1991) 235 Cal.App.3d 1346; see also Del Riccio v. Superior Court (1952) 115 Cal.App.2d 29.) Plaintiff argues that these cases demonstrate that the Court has no authority to return possession of a premises to a tenant once the landlord has possession of the premises. The Del Riccio Court held that “…the [trial] court could not, by ordering a stay, undo what had already been done so as to deprive the creditor of ownership and use of money collected under the writ.” (Del Riccio, 115 Cal.App.2d at 31.)

The situation here is similar. If the Court were to grant Defendants’ motion to set aside default, then that would open up the possibility of depriving Plaintiff, as creditor, of possession of its property. This is true even when a landlord wrongfully deprives a tenant of possession and the sheriff improperly evicted them. (Cardenas, 235 Cal.App.3d at 1350.) Defendants were lawfully locked out of the premises when default and judgment of possession were entered against them. They would not have a remedy at this point. Alternatively, Defendants’ motion is denied because they lack a remedy.

Defendants’ motion to vacate default and default judgment is denied.

Moving party to give notice.