Judge: George F. Bird, Jr., Case: 22CMCV00249, Date: 2023-03-30 Tentative Ruling

Case Number: 22CMCV00249    Hearing Date: March 30, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND 

            Plaintiff Joseph Machul III doing business as Joseph Construction (“Plaintiff”) filed the Complaint on July 29, 2022, and subsequently filed the operative First Amended Complaint (“FAC”) on October 14, 2022, against Defendants Ramon Lopez Estopellan and Maria S. Lopez (“Defendants”). Plaintiff alleges that Defendants failed to pay for construction services performed by Plaintiff. (FAC, ¶¶ 9, 11.) After Plaintiff filed the FAC on October 14, 2022, Defendants failed to respond, and default was entered against Defendants on December 6, 2022. Defendants brought a Motion to Set Aside/Vacate Default on January 11, 2023, which was denied on February 22, 2023. (See Minute Order February 22, 2023.)  

II.       MOTION TO SET ASIDE/VACATE DEFAULT

A.    Defendants’ Renewed Motion to Set Aside/Vacate Default filed on March 2, 2023.

            Defendants bring this Renewed Motion to Set Aside/Vacate Default (“Motion”) pursuant to Code of Civil Procedure section 473, subdivision (b). Defendants argue that default was improperly entered because Defendants were not served with the FAC. Defendants also argue that they relied on their attorney, Al West, who failed to respond to the FAC.

B.     Plaintiff’s Opposition filed March 17, 2023.

             Plaintiff argues that this Motion is improper as it is an identical copy of the prior Motion to Set Aside/Vacate Default and it fails to present any “new or different facts, circumstances, or law” that would support renewing the motion. (Code Civ. Proc., § 1008, subd. (a).) Plaintiff also argues that the Motion, if the court considers the merits, is substantively deficient as the offered attorney declaration does not attest to any mistake on behalf of Al West. Plaintiff also argues that Defendants had actual notice of their late answer and Defendants’ willful neglect should not be excusable.

C.     Defendants’ Reply filed March 22, 2023.

            Defendants argue the merits of the underlying Complaint by asserting that the work performed by Plaintiff was improper and that Plaintiff failed to obtain proper licensing. Defendants state that any allegations that a paralegal was performing work are irrelevant to this action.

III.       LEGAL STANDARDS

            Code of Civil Procedure section 1008 governs renewed motions or renewed applications and requires the requesting party to demonstrate “new or different facts, circumstances, or law” to support reconsideration. Any new facts, circumstances, or law must be provided in an affidavit. (Code Civ. Proc., § 1008, subds. (a) – (b).)

            “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….” (Code Civ. Proc., § 473, subd. (b).)

            “While section 473 is remedial and should be liberally construed, nevertheless the moving party has the burden of showing that the default was entered through ‘mistake, inadvertence, surprise or excusable neglect’ (s 473), which he must establish by a preponderance of the evidence (Luz v. Lopes, 55 Cal.2d 54, 61—62, 10 Cal.Rptr. 161, 358 P.2d 289); in the absence of such showing the default may not be set aside. (Yarbrough v. Yarbrough, 144 Cal.App.2d 610, 614—615, 301 P.2d 426; Gudarov v. Hadjieff, 38 Cal.2d 412, 418, 240 P.2d 621; Beard v. Beard, 16 Cal.2d 645, 647, 107 P.2d 385.).” (Goodson v. Bogerts, Inc. (1967) 252 Cal.App.2d 32, 38 [60 Cal.Rptr. 146, 150].)

IV.       DISCUSSION

A.    No new facts, circumstances, or law have been offered to support reconsideration.

            Code of Civil Procedure section 1008 states “A party who originally made an application for an order which was refused in whole or part … may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what … new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (b).) Compliance with this section is mandatory as Code of Civil Procedure section 1008, subdivision (e) states “This section … applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

            The Supreme Court of California directly addressed the relationship between the requirements of Code of Civil Procedure section 1008 and a motion to set aside/vacate default under Code of Civil Procedure section 473, subdivision (b), which is the section Defendants seek relief under. The Supreme Court of California clarified that “sections 473(b) and 1008 do not conflict. Nothing in the language or legislative history of those statutes suggests the Legislature has ever understood that motions for relief from default (§ 473(b)) are exempt from the requirements generally applicable to renewed motions (§ 1008).” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 842 [189 Cal.Rptr.3d 824, 832, 352 P.3d 391, 399].) This determination explicitly subjects renewed applications for relief from default to the requirements of Code of Civil Procedure section 1008.

            Defendants first Motion to Set Aside/Vacate Default (“Prior Motion”) was denied on February 22, 2023. Defendants brought this Motion on March 2, 2023, again seeking to set aside the default entered against Defendants. When reviewing the papers filed for the Prior Motion and the papers filed for this Motion, the papers are identical. The text of the motions does not provide any new facts, circumstances, or laws that the first motion did not address.

            The declaration of Defendant Ramon Lopez Estopellan states that Defendant’s son spoke with Plaintiff’s attorney after the demurrer was denied, that Plaintiff’s attorney allegedly threatened to take Defendants’ home if payments were not made, and that Defendants hired counsel after the demurrer, but the relationship has since terminated. (Decl. Ramon Lopez Estopellan, ¶¶ 3, 4, 5.) None of these statements demonstrate a new fact or circumstances not known by the court at the prior hearing that would warrant reconsideration. Defendants do not demonstrate that the phone call has any impact on the default that was entered. Defendant Ramon Lopez Estopellan also does not demonstrate any new facts regarding the termination of his prior counsel.

             Jose Lopez, son of Defendants, submitted an identical declaration on this Motion to the signed declaration of Jose Lopez on the Prior Motion. Jose Lopez again informs the court of the phone calls with Plaintiff’s counsel and the relationship with attorney Al West that has since been terminated. These facts are not new as Defendants asserted them on the prior motion and Plaintiff’s counsel addressed both the phone call and the representation by Al West in Plaintiff’s Opposition to the Prior Motion. Plaintiff’s counsel asserted that the substance of the phone call did not include threats and that Plaintiff believes Defendants were being improperly represented by a paralegal who was doing Defendants a disservice. ( Decl. Nicholas Brunner attached to Opposition to the prior Motion to Set Aside/Vacate Default, ¶¶ 14, 15, 16, 18, 19, 20, 21.)

            Finally, Defendants present a signed copy of the declaration of Al West which was presented as an unsigned declaration on the Prior Motion. Al West simply declares that he reviewed the case file and determined that the First Amended Complaint had not been properly served. (Decl. Al West attached to Order Proposed filed March 2, 2023, p. 1:6-10.) This is not a new fact or circumstance as the Prior Motion is premised on this allegation by stating “The moving defendants now asking for a set aside of the default judgments, and for the Court to void the entry by the Clerk for failure to ascertain service was effectuated upon the Defendants.” (Motion to Set Aside/Vacate Default filed January 11, 2023, p. 3:20-22.) 

             This Court does not find that Defendants have presented any new facts, circumstances, or laws that would satisfy the requirements of Code of Civil Procedure section 1008. Compliance is mandatory as “No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” (Code Civ. Proc., § 1008, subd. (e).)

            Based on the foregoing, this Renewed Motion to Set Aside/Vacate Default is DENIED.

V.       CONCLUSION

            The Court rules as follows:

            This Renewed Motion to Set Aside/Vacate Default is DENIED.

            Plaintiff to give notice.

Dated: March 30, 2023                                               __________________________________

                                                                                                Judge of the Superior Court