Judge: Helen Zukin, Case: 22SMCV00569, Date: 2022-07-25 Tentative Ruling
Case Number: 22SMCV00569 Hearing Date: July 25, 2022 Dept: 207
Background
This is an unlawful detainer action brought by Plaintiff
Sunset Equity Partners, LLC (“Plaintiff”) against Defendant Filemon Garcia
(“Defendant”). Plaintiff was personally served with the Summons and Complaint
on April 25, 2022. When Plaintiff did not make an appearance in this action,
default was entered against him on May 10, 2022, followed by the entry of a
default judgment against him on May 19, 2022. Defendant now brings this motion
to set aside the entry of default and default judgment entered against him.
Defendant’s motion was originally set for hearing on July
25, 2022, however Defendant brought an ex parte application to shorten time for
the hearing. On June 29, 2022, the Court granted Defendant’s application and
advanced the hearing date on Defendant’s motion to July 11, 2022. On July 11,
2022, the Court continued the hearing to July 25 and set deadlines for the
filing of opposition and reply briefs.
Standard to Set Aside Entry of Default and Default Judgment
Defendant
brings this motion to set aside the entry of default against him pursuant to
Code Civ. Proc. § 473(b). An application for relief under section 473(b) must
be made no more than six months after entry of the judgment, dismissal, order,
or other proceeding from which relief is sought and must be accompanied by an
affidavit of fault attesting to the mistake, inadvertence, surprise or neglect
of the moving party or its attorney. (Code Civ. Proc., § 473(b); English v.
IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) In addition, an
application for relief under this section “shall be accompanied by a copy of
the answer or other pleading proposed to be filed herein, otherwise the
application shall not be granted.” (Code Civ. Proc., § 473(b).) Relief under
this section is mandatory when based on an attorney affidavit of fault;
otherwise, it is discretionary. (Id.)
“ ‘ “The
policy of the law is to have every litigated case tried upon its merits, and it
looks with disfavor upon a party, who, regardless of the merits of the case,
attempts to take advantage of the mistake, surprise, inadvertence, or neglect
of his adversary.” ’ [Citations.] ‘Because the law favors disposing of the
cases on their merits, “any doubts applying section 473 must be resolved in
favor of the party seeking relief from default [citations]. Therefore, a trial
court order denying relief is scrutinized more carefully than an order
permitting trial on the merits.” ’ [Citations.]” ’ ” (Fayusi v. Permatex,
Inc. (2008) 167 Cal.App.4th 681, 696.) Section 473 is a remedial statute
that is to be broadly construed. (Id. at p. 1368.) In addition, it is
well-settled that the law favors judgments on the merits and any doubts on a
motion for relief from default must be resolved in favor of the moving party. (Laselle
v. Vogel (2019) 36 Cal.App.5th 127, 134.)
Analysis
1. Relief Under Code Civ. Proc. § 473(b)
Defendant does not contest
Plaintiff’s service of process. Rather, Defendant states his failure to timely
respond to Plaintiff’s Complaint in this action was the result of an
inadvertent error by his counsel. Counsel has submitted a declaration
explaining his error. This action is the second unlawful detainer action
between the parties, the first of which was terminated by the granting of Defendant’s
motion to dismiss. (Tamer Decl. at ¶¶ 2-3.) Counsel represented Defendant in
this previous action as well. (Id.) When counsel obtained the Summons
and Complaint in the instant action, he timely prepared and filed a demurrer to
Plaintiff’s Complaint but inadvertently filed the demurrer in the prior
unlawful detainer action rather than the instant one. (Id. at ¶¶ 4-5,
Ex. B.) Counsel realized the mistake on June 6, 2022, and attempted to file the
demurrer in the proper action. However, by that time default and a default
judgment had already been entered against Defendant and this filing was
rejected. (Id. at 6.)
Plaintiff opposes Defendant’s
motion on multiple grounds.
First, Plaintiff contends
Defendant’s motion fails to specify whether Defendant is invoking the mandatory
or discretionary provisions of Code Civ. Proc. § 473(b). The Court disagrees.
Defendant’s notice of motion expressly states, “This Application and Motion are
made on the grounds that Defendant’s Default and Default Judgment we[re] taken
due to attorney error.” (Motion at 1.) Further, attorney error is the only
basis on which relief is sought or which supporting evidence was submitted. The
Court finds Defendant’s motion sufficiently invokes the mandatory provisions of
Code Civ. Proc. § 473(b).
Plaintiff argues the declaration
of counsel submitted with Defendant’s motion is insufficient to satisfy the
mandatory provisions of Code Civ. Proc. § 473(b) because it “is the same
affidavit that was filed with the ex parte application to shorten time” and
“[t]here is no separate ‘affidavit of fault’ submitted with the instant
motion.” (Supp. Opp. at 4.) Plaintiff cites to no authority in support of this
argument, and the Court cannot locate any authority suggesting a party can only
support of an application for relief under section 473(b) with declarations or
affidavits which have never previously been submitted to the Court.
Accordingly, the Court rejects this argument.
Plaintiff notes Defendant did not
submit a notice of rejection for the demurrer which was inadvertently filed in
the wrong action. (Supp. Opp. at 4.) Plaintiff is correct no notice of
rejection was submitted by Defendant, but this is because the filing was not
rejected by the e-filing system, it was accepted. (Ex. B to Tamer Decl.)
Plaintiff similarly alleges Defendant did not submit a notice of rejection for
the demurrer Defendant’s counsel attempted to file on June 6, 2022, in the
instant action. Plaintiff is mistaken, the notice of rejection is attached as
Exhibit D to the Declaration of Steven Tamer.
Plaintiff further argues
Defendant’s motion must be denied because no “answer or other pleading was
attached to the instant motion” as required by Code Civ. Proc. § 473(b). (Supp.
Opp. at 7-8.) Section 473(b) provides a motion for relief from default “shall be accompanied by a copy of
the answer or other pleading proposed to be filed herein, otherwise the
application shall not be granted.” Defendant’s motion was accompanied by a
proposed Answer filed contemporaneously with Defendant’s motion on June 27,
2022. Accordingly, the Court finds Defendant satisfied the requirement of
section 473(b) regarding the submission of a proposed pleading.
Plaintiff
also contends Defendant’s default here was not the result of counsel’s mistake
or inadvertence “but rather a calculated strategy of Defendant and his counsel
to delay an eviction.” (Supp. Opp. at 6.) Plaintiff relies on the Declaration
of Jeffre Lowe in support of this argument. A review of Mr. Lowe’s declaration
does not reveal any “highly dubious behavior” which casts any doubt on the
veracity of the declaration submitted by Defendant’s counsel. Mr. Lowe’s
declaration discusses the history of the litigation between the parties, which
spans several years and actions. Plaintiff argues this is the third motion for
relief under Code Civ. Proc. § 473(b) which has been filed by Defendants’
counsel. (Lowe Decl. at ¶12.) Plaintiff asserts similar motions were filed in
prior unlawful detainer actions with the case numbers 21SMUD00331 and
21SMCV00941.
The Court notes the motion for relief from default filed in
the 21SMUD00331 action
was not brought under section 473(b), as Plaintiff asserts, but instead was
brough under section 473(d), alleging “any Default against Defendant, in the
instant matter, is void because Default was granted without any Notice to Quit
being filed, or in evidence, when the court granted Default against Defendant.”
In granting this motion and finding the default judgment void, the Court found
“Plaintiff's complaint references an attached notice to quit as an exhibit. No
notice to quit is attached to plaintiff's complaint. Plaintiff provides no
support for the proposition that because this is a commercial property no
notice need be attached, relying on the allegations of the complaint. The Court
disagrees.”
The motion in the 21SMCV00941 action was brought under both
Code Civ. Proc. § 473(b) and (d). This motion argued the default judgment
entered against a named defendant was void because the request for default on
which it was based only requested entry of default against the unknown
occupants and not the named defendant. Alternatively, the motion argued for
relief under section 473(b) on the basis that defendant’s prior counsel had
forged his client’s signature on a declaration which contained false statements
defendants did not agree with or authorize. The Court granted this motion on
both bases, finding the default judgment had been improperly entered and noting
defendant’s prior counsel had been suspended from the practice of law for
knowingly making a false statement to the United States Bankruptcy Court for
the Central District of California.
Neither of these prior motions evidences any nefarious
scheme or plan by Defendant or his counsel, or casts doubt on the statements
made in Mr. Tamer’s declaration in support of the instant motion. Mr. Lowe
recites a history of motions filed by both sides in the other actions between
these parties. This history illustrates both sides have been vigorous in
litigating these actions but does not demonstrate any “highly dubious behavior”
by Defendant or his counsel. (Metropolitan Service Corp. v. Casa de Palms,
Ltd. (1995) 31 Cal.App.4th 1481, 1488 [“Defendants' prior resistance does
not entitle plaintiff to a default judgment”].)
Mr. Lowe contends Defendant has not used his preferred email
address for communications and electronic service in this litigation. (Lowe
Decl. at ¶39.) Defendant is directed to use Mr. Lowe’s specified email address
for communications and electronic service in this action going forward.
Finally, Plaintiff contends
Defendant does not have a viable defense in this action and thus his motion
must be denied. Plaintiff provides no authority for the proposition that the
Court can consider or adjudicate the underlying merits of an action in ruling
on a motion for mandatory relief under Code Civ. Proc. § 473(b). Rather, “if the prerequisites for the application of the
mandatory provision of section 473, subdivision (b) exist, the trial court does
not have discretion to refuse relief.” (Leader v. Health Industries of
America, Inc. (2001) 89 Cal.App.4th 603, 612.) Plaintiff’s
arguments as to the merits of its claims against Defendant are more properly
suited to a motion for summary judgment brought after Defendant has appeared in
the action.
As set forth above, the law favors
resolution of disputes on their merits, and doubts in resolving a request for
relief from the entry of default must be resolved in favor of the moving party.
The declaration of counsel and accompanying exhibits demonstrate Defendant made
a good faith effort to timely respond to Plaintiff’s pleading but was prevented
from doing so by his counsel’s mistaken filing of Defendant’s responsive
pleading in the wrong unlawful detainer action between these same parties. On
such facts, which are uncontested, the Court finds Defendant has sufficiently
explained his failure to timely respond to Plaintiff’s Complaint such as to be
entitled to relief under Code Civ. Proc. § 473 and GRANTS his motion to set
aside the default entered against him on May 10, 2022, and the default judgment
entered against him on May 19, 2022.
2. Fees, Costs,
and Sanctions
Code Civ. Proc. § 473(b) provides:
“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.” Plaintiff requests the Court award it
$5,950 in attorney’s fees incurred in opposing Defendant’s motion. However,
under section 473(b), a party is only entitled to recover the reasonable
compensatory legal fees “necessitated by [the moving party’s] neglect.” (Matera
v. McLeod (2006) 145 Cal.App.4th 44, 68.) Accordingly, Plaintiff is
entitled to recover reasonable compensatory fees and costs incurred in entering
default against Defendant, obtaining a default judgment against him, or other
similar expenses. However, Plaintiff’s unsuccessful opposition to the instant
motion was not necessitated by the neglect of Defendant’s counsel. Plaintiff
has not provided the Court with any fees and costs it incurred beyond the fees
associated with opposing the instant motion. The Court in its discretion finds
$500 to be a reasonable amount to compensate Plaintiff for legal fees incurred
as a result of the mistake of Defendant’s counsel.
Plaintiff also asks the Court to
sanction Defendant in the amount of $1,000 pursuant to Code Civ. Proc.
§473(c)(1), which allows a Court to “Impose a penalty of no greater than one
thousand dollars ($1,000) upon an offending attorney or party.” Plaintiff’s
request for the maximum penalty is based on the same allegations of tactical
delay and “dubious behavior” which the Court rejected above. Accordingly, the
Court finds no basis to impose any penalty against Defendant or his counsel
under Code Civ. Proc. § 473(c).
Conclusion
Defendant Filemon Garcia’s motion to set aside the entry of
default against him is GRANTED. Defendant’s counsel is directed to pay $500 to
Plaintiff’s counsel as reasonable compensatory legal fees incurred as a result
of his mistake.