Judge: Gregory Keosian, Case: 23STCV23457, Date: 2024-01-17 Tentative Ruling

Case Number: 23STCV23457    Hearing Date: January 17, 2024    Dept: 61

Defendants Antonette Isham and Scott Spicer’s Motion to Set Aside Default and Default Judgment is GRANTED.

Defendants to give notice.

I.                MOTION FOR RELIEF FROM DEFAULT

Code of Civil Procedure section 473, subdivision (b) states:

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 . . . 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.

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Defendants Antonette Isham and Scott Spicer (Defendants) move for relief from default and default judgment entered against them on November 15 and 16, 2023, in this unlawful detainer matter. Although a proof of service filed on November 15, 2023, indicate that substitute service was accomplished at the premises in question upon a resident on October 22, 2023, Defendants deny that they or their tenants — the premises is transitional housing for people who are unhoused — were served. (Isham Decl. ¶ 3.)

Defendants argue that prior to any instance of service, as early as September 25, 2023, their counsel notified Plaintiff that he was authorized to accept service on their behalf in this matter. (Tamer Decl. Exh. A.) A second notice was sent on October 18, 2023. (Tamer Decl. Exh. B.) Plaintiff’s counsel emailed Defendant’s counsel the summons and complaint on November 9, 2023, and notified him that, as there was no answer yet on file, they would seek entry of default “in the next couple of days.” (Tamer Decl. Exh. C.) In a November 13 email, Plaintiff informed Defendants’ counsel that the email service of the complaint had been “a courtesy,” and that they would wait until Wednesday, November 15, to take Defendants’ default. (Tamer Decl. Exh. D.) When Defendants’ counsel responded on the afternoon of November 15 that he had until November 20 to file an answer, based on the email service of the complaint on November 9, Plaintiff’s counsel responded that said email service had been as a courtesy, that Defendants had previously been served, and their answer was overdue. (Tamer Decl. Exh. D.) Default was entered on November 15, 2023. Defendants attempted to file a motion to strike on November 17, 2023. (Tamer Decl. Exh. F.)

Defendants’ counsel contends that he had the flu from November 2 through Novmeber 16, 2023, and had pneumonia from November 20, 2023, through the present, and presents supporting test and medication documents. (Tamer Decl. ¶ 12, Exh. G, H.) He states that his illness and his medication caused him fatigue and confusion, which caused him to fall behind on his work. (Tamer Decl. ¶¶ 13–15.) Defendants have filed a proposed answer with their motion.

Defendants have shown excusable neglect in this matter. Defendants provided authorization to Plaintiff to serve them through counsel in this matter, and Plaintiff instead served Defendants by substitute service upon the premises in question, which serves as transitional housing for its residents. Defendants’ counsel was evidently unaware of this service, as his email of November 15, 2023, indicates his belief that summons was first served by email upon him on November 9, 2023, and that he had until November 20, 2023, to file a response. Defendants’ counsel was, moreover, ill with the flu through the time in question. No opposition to this motion has been filed.

The motion is therefore GRANTED.