Judge: Holly J. Fujie, Case: 21STCV46671, Date: 2023-03-07 Tentative Ruling

Case Number: 21STCV46671    Hearing Date: March 7, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendants Samuel E. Anguiano and Patricia J. Anguiano (collectively, “Moving Defendants”)

            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

            This action arises out of a contract for sale of real property.  The currently operative first amended complaint (the “FAC”) was filed on July 13, 2022 and alleges specific performance for the sale of real property.  Moving Defendants’ defaults were entered on October 25, 2022.  On January 19, 2023, Moving Defendants filed a motion to set aside/vacate the defaults pursuant to CCP section 473, subdivision (b) (the “Motion”) on the grounds of mistake, inadvertence or excusable neglect of counsel. 

DISCUSSION

CCP section 473, subdivision (b) provides that the court may relieve a party or his or her legal representative from a judgment, dismissal, or order or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  (CCP § 473, subd. (b).)  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; or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.  (Id.)  The law favors a trial on the merits and courts therefore liberally construe section 473.  (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1477.)  Doubts in applying section 473 are resolved in favor of the party seeking relief from default.  (Id. at 1478.) 

The Motion provides evidence that Moving Defendants’ failure to timely respond to the FAC was due to oversight of counsel, who was retained on October 17, 2022 and mistakenly failed to file an answer by the October 21, 2022 deadline.  (See Declaration of Josue Guerrero (“Guerrero Decl.”) ¶¶ 5-7.) 

Because the Motion includes a declaration providing that Moving Defendants did not timely respond to the FAC due to their counsel’s error and it is unopposed, the Court GRANTS the Motion.  (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)  Moving Defendants are ordered to file their answer within five court days.  The no-appearance case review re: resubmission of Plaintiffs’ default judgment application is vacated.

            Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

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 7th day of March 2023