Judge Holly J. Fujie, Case Number: 19STCV29385, Date: 2023-10-30 Tentative Ruling

This action arises out of habitability and substandard conditions concerning Plaintiff’s tenancy at the premises located on 3531 E. 6^th Street, Los, Angeles, California. On August 19, 2019, Plaintiffs Barbara Mendoza (“Plaintiff”), Johnny Ramirez, and Lisa Granado filed a complaint against Defendants Danny Navarro (“Defendant”) and Does 1-5, alleging (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; (6) negligence.

On May 21, 2021, the Court found judgment for Plaintiff when Defendant failed to appear at trial. (05/21/2021 Judgment.) On March 22, 2022, the Court issued an abstract of judgment in favor of Plaintiff against Defendant in the amount of $155,660.80. (03/22/2022 Abstract of Judgment.)

Defendant filed the instant motion to vacate the judgment on September 21, 2023. On October 23, 2023, Plaintiff filed an opposition. On October 25, 2023, Defendant filed a reply.

The following objections are sustained: 1, 3, 4, 5, 6, 7, 10, 12, 13, 14, 15, 16, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30

The Motion is brought pursuant to Code of Civil Procedure, section 473. The application for relief must be made no more than six months after entry of the order 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, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

Defendant’s Motion was not timely brought less than six months after the Judgment. Instead, the Motion was filed almost 1 year and seven months after the Judgment. The six-month deadline is jurisdictional and not subject to tolling. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) Therefore, the Court has no statutory authority to relieve Defendant from the dismissal under this statute.

When a motion to vacate a judgment “is made more than six months after the default was entered, the motion is not directed to the court’s statutory power to grant relief for mistake or excusable neglect under Code of Civil Procedure section 473, but rather is directed to the court’s inherent equity power to grant relief from a default or default judgment procured by extrinsic fraud or mistake.’ [Citations.]” (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 314.) Extrinsic fraud occurs when a defendant is deprived of his opportunity to present his claim or defense to the court, or when he was kept ignorant or fraudulently prevented from fully participating in the proceeding. (Id. at p. 315.) This does not include circumstances when the party “‘has been given notice of the action and has had an opportunity to present his case and to protect himself from any mistake or fraud of his adversary, but has unreasonably neglected to do so.’” (Ibid.) For extrinsic mistake, “[m]istake has been defined as ‘“ . . . the doing of an act under an erroneous conviction, which act, but for such conviction, would not have been done.”’ (Salazar v. Steelman (1937) 22 Cal.App.2d 402, 409 [71 P.2d 79].) The same reasoning logically applies to a failure to act,—an omission.” (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 738 (“Aldrich”).)

To set aside a judgment or order based on extrinsic mistake, the defaulted party must (1) show that it has a meritorious case, (2) articulate a satisfactory excuse for not presenting a defense to the original action, and (3) demonstrate that it was diligent in seeking to set aside the default once it had been discovered. (Id.)

A court may properly consider papers that are not timely filed pursuant to CCP section 1005(b) unless “substantial rights” are affected. (Cal. Rules of Court, rule 3.1300(d); Code Civ. Proc., § 475.) The appearance of a party at the hearing of a motion and his or her opposition to the motion on the merits is a waiver of any procedural defects or irregularities in a motion. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.)

Defendant moves to vacate the judgment on the grounds that Defendant was abandoned by his attorney Shawn Golan (“Golan” or “counsel”) and misled for over two years into believing that he was properly represented in this matter. Defendant’s defense is that he did not receive notice of the judgment and abstract of judgment and Golan did not him about the judgment, despite their continued communication. (See Motion at p. 5-7.)

The Court notes that Plaintiff’s opposition was not timely filed as it was due on October 20, 2023. It appears that Defendant timely filed a reply and objections to Plaintiff’s evidence, so it appears there has been no prejudice to Defendant. As such, the Court will consider Plaintiff’s opposition in determining the merits of Defendant’s motion.

In opposition, Plaintiff argues that Defendant has never retained any attorney in the litigation of this case and Defendant was aware that he was unrepresented through the litigation but chose to ignore it. Plaintiff also contends that Defendant has provided insufficient evidence to support vacating the judgment against him. Plaintiff also asserts that Defendant’s reliance on the Aldrich case is misplaced because that case involved different facts from this case. Plaintiff asserts that Defendant failed to act with reasonable diligence because he was aware of the events during litigation and waived over 20 months to set aside the judgment. Last, Plaintiff argues that she will be prejudiced if the court vacates the judgment due to her suffering from memory lapse.

In reply, Defendant argues that Plaintiff’s opposition should be disregarded and not considered by the Court in ruling on the motion to vacate. Defendant contends that Plaintiff’s counsel has violated Rule 4.2(a) of the California Rules of Professional Conduct by communicating with Defendant while he was represented by counsel. Defendant seeks the disqualification of Plaintiff’s counsel Azuka L. Uzoh as remedy for her misconduct. Defendant argues that Uzoh’s declaration contains hearsay and statements made without personal knowledge that must be excluded. Defendant also argues that he has shown a meritorious defense and Plaintiff fails to demonstrate prejudice.

Defendant sets forth in his declaration that his acquaintance Angelyn Gates referred him to Golan, an experienced litigation attorney. (Navarro Decl. ¶9.) On December 19, 2020, Defendant entered into a written engagement agreement (“Retainer”) with Golan who agreed to represent him in the lawsuit. (Id. at ¶10, Ex. A.) Defendant communicated with Golan over email regarding the trial date in the lawsuit, which was originally set for January 11, 2021, but Golan informed Defendant that the next hearing was a Final Status Conference on April 6, 2021. (Id. at ¶11, Ex. C.) Defendant attests to having continued communications with Golan from January 9, 2021, and several months after through email and phone calls but was not aware that trial was scheduled on April 12, 2021, on the day Golan planned to call him to discuss the lawsuit. (Id. at 12, Ex. D.)

Defendant states that he continued to assume Golan was properly representing him in the lawsuit after April 12, 2021, but was surprised to receive in the mail the copy of an Abstract of Judgment issued against him and subsequently emailed the documents to Golan. (Id. at ¶13, Ex. E.) Defendant spoke with Golan over the telephone after June 21, 2023, who offered no explanation as to what happened and promised to have the abstract and lien removed by the Recorder. (Id. at ¶14.) On August 18, 2022, Defendant learned that the Abstract and lien were still on record and Golan promised he would file a motion to set aside the Abstract and lien. (Id. at ¶15, Ex. F.) From September 21, 2022 to October 16, 2022, and January 30, 2023 to February 17, 2023, Defendant asserts that Golan did not provide any updates about setting aside the Abstract and judgment or confirmation that a motion had been filed. (Id. at ¶16-17, Ex. G, H.) Defendant asserts that Golan informed him on June 19, 2023, that “he had “blown it” with my case, he simply failed to show up for the trial in the lawsuit on April 12, 2021, or any thereafter, and that in fact there was no hearing scheduled in June 2023 or any other date. He promised me ... that he would get the judgment in the Lawsuit removed as soon as possible and “make things right.”” (Id. at ¶18.) Defendant also states Golan informed him he would reserve a court hearing date of August 1, 2023, for a motion to vacate the judgment but failed to provide him with a copy of the motion; Luis Torres visited Golan’s address, but Golan emailed Defendant on July 31, 2023, that he would file a police report and informed him not to contact him again and disputed that Defendant had paid him. (Id. at ¶19-20. Ex. K.) Defendant retained Douglas Galanter as counsel on August 10, 2023, and attests that until June 19, 2023, he believed Golan would represent him. (Id. at ¶¶ 20 and 23.)

Defendant first discovered the Abstract of Judgment on June 20, 2022. (Navarro Decl. ¶13, Ex. E.) Defendant also actively communicated with his counsel on the trial date of April 12, 2021. (Id. at ¶12, Ex. D.) Considering the timing of Defendant’s learning about the abstract of judgment after judgment was entered in the case, and the long period of inaction by Defendant or counsel since the underlying events and Defendant’s discovery of the judgment, the Court finds that Defendant’s timing was not reasonable, and that he did not act diligently in seeking relief.

Defendant contends he has a meritorious defense. However, Defendant merely states that Plaintiff’s “[c]laims are without merit and unsupported by the true facts, and that Plaintiff’s factual allegations are either false, exaggerated or misleading.” (Navarro Decl. ¶5.) Furthermore, Defendant directs the Court to its answer to Plaintiff’s complaint on January 28, 2020, where he denied the allegations of the Complaint and asserts nineteen affirmative defenses. (Reply, at p. 9.) Defendant asserts that he “never conducted a campaign to evict Plaintiff … never abandoned my duties as a landlord and never intentionally refused to make repairs.” (Navarro Supp. Decl. ¶20.)

The Court cannot grant relief under equitable grounds because Defendant has not shown extrinsic fraud or mistake as grounds for granting such relief. Here, Defendant has not indicated that he was prevented from exhibiting his case through the fraud or deception of his opponent or the acts of Plaintiff. Defendant attributes his counsel’s incompetence as an extrinsic mistake, but Defendant has failed to provide an attorney declaration of fault from Golan. Defendant regularly communicated with counsel through email and phone calls and despite learning of the Abstract of Judgment issued against him, Defendant continued to assume that counsel was properly representing him. (Navarro Decl. ¶14.) While Defendant attests to Counsel’s error in failing to show up for trial on April 12, 2021, Defendant must demonstrate that he has a meritorious case against Plaintiff. Defendant has failed to demonstrate that he has a meritorious case. Thus, Defendant has not met his burden of showing extrinsic mistake or fraud.

Accordingly, the Court DENIES Defendant’s motion to vacate judgment on equitable grounds.

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.

Hon. Holly J. Fujie

Judge of the Superior Court