Judge: Holly J. Fujie, Case: 19STCV28385, Date: 2023-10-17 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 19STCV28385    Hearing Date: October 17, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant Danny Navarro (“Moving Defendant”)

            The Court has considered the moving papers.  No opposition papers were filed.  Any opposition papers were required to have been filed and served at least nine court days before the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).

BACKGROUND

            Plaintiffs’ complaint (the “Complaint”) alleges: (1) breach of implied warranty of habitability; (2) breach of statutory warranty of habitability; (3) breach of covenant of quiet enjoyment; (4) intentional infliction of emotional distress; (5) nuisance; and (6) negligence.

Moving Defendant did not appear at the trial held on April 12, 2021, and on May 21, 2022, the Court entered judgment (the “Judgment”) against him.  On March 22, 2023, Plaintiffs filed an abstract of judgment (the “Abstract”). 

On September 21, 2023, Moving Defendant filed a motion to vacate the Judgment and strike the Abstract pursuant to the Court’s equitable powers.

DISCUSSION

A final judgment can be set aside upon a showing of extrinsic fraud or mistake.  (Kasperbauer v. Fairfield (2009) 171 Cal.App.4th 229, 237.)  Equitable relief from an order or judgment otherwise final may be granted on [he theory of extrinsic mistake where the aggrieved party has been unable to make a case of extrinsic fraud, but has shown excusable neglect, hardship or other grounds for the failure to press a claim or defense.  (Id.)  Among other things, where a party has refrained from litigating a claim or defense in reliance on some agreement or promise to act or refrain from acting, which promise is subsequently breached, such reliance may establish a case of excusable extrinsic mistake.  (Id.)  Extrinsic mistake occurs when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.  (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 30.)  In contrast with extrinsic fraud, extrinsic mistake exists when the ground of relief is not so much the fraud or other misconduct of one of the parties as it is the excusable neglect of the defaulting party to appear and present his claim or defense.  (Id.)  If that neglect results in an unjust judgment, without a fair adversary hearing, the basis for equitable relief on the ground of extrinsic mistake is present.  (Id.)  The positive misconduct of a party’s attorney may support a finding of extrinsic mistake.  (See, e.g., People v. One Parcel of Land (1991) 335 Cal.App.3d 579, 584.)

In support of the Motion, Moving Defendant provides evidence that the attorney he retained to represent him in this matter misled him about the status of the proceedings.  Moving Defendant regularly discussed this matter with Shawn Golan (“Golan”), the attorney he retained on December 19, 2020, and believed that Golan was properly handling his defense.  (See Declaration of Danny Navarro (“Navarro Decl.”) ¶¶ 10-13.)  Throughout their communications, Golan failed to inform Moving Defendant of the April 12, 2021 trial date, and Moving Defendant did not learn of the Judgment until he received a copy of the Abstract in the mail on or about June 20, 2022.  (Navarro Decl. ¶ 13.)  Moving Defendant thereafter contacted Golan, who assured him that he would take measures to vacate the Judgment.  (See Navarro Decl. ¶¶ 14-18.)  Golan’s active misrepresentations about his efforts to address the Judgment and Abstract with the Court continued through August 2023.  (See Navarro Decl. ¶¶ 19-21.)  After Moving Defendant had a representative attempt to visit Golan at his registered business address on July 31, 2023, Golan contacted Moving Defendant to tell him to stop contacting him.  (Navarro Decl. ¶ 20.)^[1]  Moving Defendant thereafter retained his current counsel on August 10, 2023.  (Navarro Decl. ¶ 21.) 

The Court finds that the Motion presents sufficient evidence that Moving Defendant’s failure to participate in this litigation and present a defense is attributable to extrinsic mistake caused by the ongoing assurances of his former counsel.  For this reason and because it is unopposed, the Court GRANTS the Motion.  The Court schedules a status conference on December 7, 2023 at 8:30 a.m. in this department.

            Moving party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

                                                                                       Dated this 17th day of October 2023