Judge: Joel L. Lofton, Case: 22AHCV00210, Date: 2023-02-22 Tentative Ruling

Case Number: 22AHCV00210    Hearing Date: February 22, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     February 22, 2023                               TRIAL DATE: No date set.

CASE:                         ATLANTIC TIMES SQUARE X, LLC, a California Limited Liability Company v. ICHIBAN SNACKS, INC. a California corporation , DOES 1 to 10 inclusive.

CASE NO.:                 22AHCV00210

MOTION TO SET ASIDE DEFAULT

MOVING PARTY:               Defendant Ichiban Snacks, Inc. (“Defendant”)

RESPONDING PARTY:      Plaintiff Atlantic Times Square X, LLC

SERVICE:                              Filed January 24, 2023

OPPOSITION:                       Filed February 7, 2023

REPLY:                                   No reply filed.

RELIEF REQUESTED

            Defendant moves to set aside the default judgment that was entered against it on July 20, 2022.

BACKGROUND

             This case involves an unlawful detainer action for real property located at 500 N. Atlantic Boulevard, Unit 160, Monterey Park, California 91754.

TENTATIVE RULING

            Defendant’s motion to set aside the default judgment is DENIED.

LEGAL STANDARD

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.)  The discretionary relief provisions of Code of Civil Procedure section 473, subd. (b) provide in relevant part: “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.” 

The mandatory relief provision provides that a court shall grant relief “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.” (Code Civ. Proc. section 473, subd. (b).)

            “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” (Code Civ. Proc. section 473.5, subd. (a).)

DISCUSSION

            Defendant moves to set aside the default judgment. The initial complaint was filed on April 8, 2022. Default was entered against Defendant on June 3, 2022. Both parties provide that default judgment was entered against Defendant on July 25, 2022. However, the court’s records show that the default judgment was entered against Defendant on July 20, 2022. Defendant’s motion to set aside default was filed on January 24, 2023.

            It appears that the confusion is caused by the fact that Defendant’s motion is erroneously titled “Memorandum of Points and Authorities in Support of Motion to Set Aside Child Support Order Dated 07/25/2022.” This present case is an unlawful detainer action, and the default judgment was entered on July 20, 2022.

            Defendant’s motion is over six months after both the entry of default and entry of default judgment. Thus, Defendant is not entitled to either the discretionary or mandatory relief provisions of Code of Civil Procedure section 473, subdivision (b).

            Defendant also argues in the body of its motion that it is entitled to relief because it never received actual notice. However, Defendant once again erroneously references a child support dispute and a service date of March 23, 2006, neither of which are relevant to this present case. Defendant’s counsel also provides that Defendant’s president asked him to represent Defendant on or about May 29, 2022. (Kim Decl. ¶ 5.) Thus, Defendant has failed to demonstrate a lack of actual notice.

CONCLUSION

            Defendant’s motion to set aside the default judgment is DENIED.

            Moving Party to give notice.

Dated:   February 22, 2023                             ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court