Judge: Gary Y. Tanaka, Case: 21TRCV00297, Date: 2022-10-19 Tentative Ruling

Case Number: 21TRCV00297    Hearing Date: October 19, 2022    Dept: B

PROCEEDINGS

Gloria Kevorkian v. Kambakhsh Hakimian, et al.

21TRCV00297

1. Kambakhsh Hakimian’s Motion to Set Aside Default and Default Judgment and to Recall and Quash Writ of Execution      

    

   TENTATIVE RULING

    

               Kambakhsh Hakimian’s Motion to Set Aside Default and Default Judgment and to Recall and Quash Writ of Execution is denied.

    

               Background

    

               Plaintiff filed the Complaint on April 20, 2021. Plaintiff alleges the following facts. This is a commercial unlawful detainer action related to the subject property located at 14131 Van Ness Ave., Gardena, CA 90249. Contrary to the statements made in the notice of motion, no default or default judgment were ever entered in this action. Instead, on August 12, 2021, the parties entered into a stipulated settlement. The unlawful detainer judgment was signed and entered on that date.

    

               Motion to Set Aside Default and Default Judgment

    

               CCP § 473(b) states, in relevant part: “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.  . . .  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 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. . . .”

    

               “After six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable.  . . . One ground for equitable relief is extrinsic mistake—a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. Extrinsic mistake is found when [among other things] ... a mistake led a court to do what it never intended[.] When a default judgment has been obtained, equitable relief may be given only in exceptional circumstances. [W]hen 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. Beyond this period there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted.  . . . To set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second[ ], the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last[ ], the moving party must demonstrate diligence in seeking to set aside the default once ... discovered.”  Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981–82 (internal citations and quotations omitted; emphasis in original).

    

               CCP § 473(d) empowers the Court to set aside any judgment that is void as a matter of law, e.g., lack of subject matter jurisdiction; lack of personal jurisdiction; lack of proper service of the summons and complaint; or the judgment violated due process rights.  See, Dhawan v. Biring (2015) 241 Cal.App.4th 963, 973-74; See, also, Ellard v. Conway (2001) 94 Cal.App.4th 540, 544; See, also, Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 862-64.  “It is well settled that a judgment or order which is void on its face, and which requires only an inspection of the judgment roll or record to show its invalidity, may be set aside on motion, at any time after its entry, by the court which rendered the judgment or made the order.”  Hiroko Kawakita Hayashi v. Lorenz (1954) 42 Cal.2d 848, 851. 

    

               Relief on the ground of extrinsic fraud or mistake is not available to a party who has been given notice of the action yet fails to appear, unless he or she was prevented from participating in the action. Yolo County Dept. of Child Support Services v. Myers (2016) 248 Cal.App.4th 42, 49. Equitable relief is available only where the fraud or mistake was extrinsic, which means that the party was denied the opportunity to be heard. If the fraud or mistake goes to the merits of the action, or occurred at trial, it is deemed “intrinsic” and is not a ground for relief.  Marriage of Thorne & Raccina (2012) 203 Cal.App.4th 492, 505. Extrinsic mistake may be found where the party seeking relief was mentally incompetent when judgment was entered, and no guardian was appointed; or where the party's attorney was incapacitated and unable to act. Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471-72. Extrinsic mistake does not apply where a Defendant was simply ignorant of the law and failed to timely file an Answer. Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1148-1149.

    

               Defendant moves to set aside the judgment and to recall and quash the writ of execution.  Again, while the ex parte application made reference to a default and default judgment, no default or default judgment were entered. The parties freely and upon their own accord entered into a stipulated settlement.  Instead, it appears the motion is made on the ground that the stipulated judgment should be set aside because, Defendant entered into the stipulated judgment through his mistake, inadvertence, surprise, or excusable neglect, and because Defendant believes that the judgment has been satisfied.  Defendant argues that any eviction would have been barred by the Los Angeles County eviction moratorium.

    

               Here, the judgment itself is valid on its face, and not void as a matter of law.  Defendant is attempting to attack the judgment based on extrinsic facts.  Defendant argues that he had a valid affirmative defense based on the Los Angeles County eviction moratorium.  However, Defendant fails to take into account the eviction moratorium includes a provision which states that the failure to pay rent must be COVID related.  This is a defense which would have had to be proven. The judgment is not void on its face.

    

               Defendant also appears to argue that when he entered into the stipulation, as a pro per, he did not realize the availability of this potential defense. Defendant argues that this fact constitutes relief based on excusable neglect, mistake, and surprise.  Simply because a party now believes in hindsight that he did not have the ability to properly represent himself in pro per is not a ground for relief from the stipulated judgment. “Were we to agree, no judgment against a self-represented party would ever be final. Every defendant who paid for legal counsel at trial would have to pay for a second trial after the self-represented plaintiff lost. The court did not abuse its discretion in denying relief.” Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1264. Further, “mere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.”  Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-85. As noted earlier, ignorance of the law does not constitute grounds for relief.

    

               “Mistake is not a ground for relief under section 473, subdivision (b), when the court finds that the ‘mistake’ is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law.  Further, the term surprise, as used in section 473, refers to some condition or situation in which a party is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.  Finally, as for inadvertence or neglect, to warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.  It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied.  Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs.  The only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded.” Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206 (internal citations and quotations omitted).

    

               Defendant did not argue that he was not properly served with the notice or the summons and complaint, or that his due process rights were violated such that he was unable to defend his rights in this action.  Instead, Defendant’s arguments consist of defenses or denials which he now believes, in hindsight, he should have asserted. These arguments do not constitute valid grounds for relief under CCP § 473(b) or (d).   

    

               In addition, Defendant’s ex parte application was filed on September 12, 2022, and the judgment was entered on August 12, 2021. Thus, the motion was not filed and served within six months of the entry of judgment, default, or order upon which the party seeks relief. If a motion is made based on the discretionary provision of Section 473(b), the motion must be filed and served within six months of the entry of judgment.

    

               Finally, Defendant fails to establish that his contention that he has fully satisfied the judgment constitutes grounds for relief. Plaintiff, in her opposition, provided arguments which counter’s Defendant’s rent payment calculation stating that Defendant is not fully taking into account that the stipulated judgment calls for payment of back rent as well as for on-going monthly rental payments. In any event, this portion of the motion does not argue that the judgment is void or entered into through mistake, inadvertence, surprise, or excusable neglect. Issues related to satisfaction of judgment involve its own procedural and statutory scheme which have failed to be mentioned, noticed, or properly supported with competent evidence with the instant motion.

    

               Thus, Defendant Kambakhsh Hakimian’s Motion to Set Aside Default and Default Judgment and to Recall and Quash Writ of Execution is denied.

    

               Plaintiff is ordered to give notice of this ruling.