Case Number: 22TRCV00173    Hearing Date: April 13, 2023    Dept: B

PROCEEDINGS

Karen Colonna, et al. v. Ellen Beaumel, et al. .

22TRCV00173

1.      Ellen Beaumel’s Motion to Set Aside Entry of Default        

TENTATIVE RULING

            Ellen Beaumel’s Motion to Set Aside Entry of Default is denied without prejudice.

Background

            Plaintiff filed the Complaint on March 7, 2022. Plaintiff alleges the following facts. This is a partition action related to property that was previously co-owned by two separate living trusts. The former trustee of one of the living trusts passed away and the successor trustee seeks to partition the real property.  Default was entered on June 16, 2022. The instant motion was filed on December 14, 2022.

            Motion to Set Aside Default

            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. 

CCP § 473.5(a) states, in relevant part: “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.” CCP § 473.5(b) states: “A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” The phrase “actual notice” means “genuine knowledge of the party litigant” and does not include constructive or imputed notice to the client.  Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077.

Defendant simply contends that she does not know what an “Answer” is, and states that by communicating with opposing counsel and appearing in court on several occasions, she was properly complying with her legal obligations.  (Decl., Ellen Beaumel, ¶¶ 2-4.) Defendant does not provide facts to demonstrate mistake, surprise, excusable neglect or inadvertence.  Instead, the facts outlined demonstrate inexcusable neglect.  Ignorance of the law and/or lack of resources do not constitute excusable neglect.  See, Davis v. Thayer (1980) 113 Cal.App.3d 892, 906-12.  Thus, there is no valid explanation for why Defendant did not timely respond to the summons and complaint.

The Summons clearly informs Defendant that she must file a response to the Complaint within 30 days of being served.  Thus, Defendant was certainly made aware of the requirement to respond within 30 days. 

“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).

Here, Defendant’s alleged inadvertence, surprise, mistake, or neglect was not one of a reasonably prudent person under the circumstances.  Again, the summons specifically instructs defendant that she must respond to the lawsuit within 30 days.  Further, a pro per litigant is not entitled to deferential treatment simply based on her pro se status.  See, Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-85.

“Under the statute and in addition to the necessity of excusing the original default by a sufficient showing of “mistake, inadvertence, surprise, or neglect,” the application must also be made within a “reasonable time” within six months after the party becomes aware that a default has been entered against it. This court has held that what a “reasonable time” is in any case depends primarily on the facts and circumstances of each individual case, but definitively requires a showing of diligence in making the motion after the discovery of the default.  In other words, the moving party must not only make a sufficient showing of “mistake, inadvertence, surprise, or neglect” in order to excuse the original default, but must also show diligence in filing its application under section 473 after learning about the default. If there is a delay in filing for relief under section 473, the reason for the delay must be substantial and must justify or excuse the delay.” Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1181(internal citations and quotations omitted).

Here, while the motion was just barely made within six months of the entry of default, Defendant is absolutely silent as to why the motion was not made earlier and provides no facts to justify or excuse the delay.  Defendant does not establish the required diligence to obtain relief from the entry of default.

Therefore, Defendant’s Motion to Set Aside Default is denied without prejudice.

Plaintiff is ordered to give notice of this ruling.