Judge Joel L. Lofton, Case Number: 22AHCV00245, Date: 2023-10-10 Tentative Ruling

Judge: Joel L. Lofton, Case: 22AHCV00245, Date: 2023-10-10 Tentative Ruling

Case Number: 22AHCV00245 Hearing Date: January 3, 2024 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: January 3, 2024 TRIAL DATE: No date set.

CASE: JEREMIAS ALEXANDER LARA, an individual; PASTORA ALICIA LARA, an individual; v. YUMI E. HERNANDEZ, an individual; ALEJANDRO HERNANDEZ, an individual; DLP BROTHERS, INC., a California Corporation; JOSE DE LA PAZ, an individual; and DOES 1 through 50, inclusive.

CASE NO.: 22AHCV00245

MOTION TO SET ASIDE DEFAULT

MOVING PARTY: Defendants Alejandro Hernandez and Yumi E. Hernandez

RESPONDING PARTY: Plaintiffs Jeremias Alexander Lara and Pastora Alicia Lara

SERVICE: Filed December 4, 2023

OPPOSITION: Filed December 18, 2023

RELIEF REQUESTED

Defendants move to set aside entry of default.

BACKGROUND

This case arises out of the parties’ dispute over the ownership of property located at 1651 Crest Vista Drive, Monterey Park, California 91754. Plaintiffs Jeremias Alexander Lara and Pastora Alicia Lara (“Plaintiffs”) filed a first amended complaint (“FAC”) against Defendants Yumi E. Hernandez, Alejandro Hernandez, DLP Brothers, Inc., and Jose De La Paz (“Defendants”) on August 22, 2022, alleging five causes of action for (1) breach of contract, (2) constructive trust, (3) fraud, (4) quiet title, and (5) declaratory relief.

TENTATIVE RULING

Defendants’ motions to set aside entry of default are 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).)

DISCUSSION

Defendants move to set aside entry of default. Default was entered against Alejandro Hernandez on November 3, 2022. Default was entered against Yumi E. Hernandez on November 28, 2022. On November 9, 2023, Plaintiff filed a request for entry of default judgment. On December 26, 2023, judgment quieting title was granted after a hearing on the issues and evidence on December 5, 2023.

Plaintiffs argue that Defendants’ motions are untimely because default was entered against both Defendants in November of 2022. Code of Civil Procedure section 473, subdivision (b), provides that application for relief “shall be made within a reasonable time, in no case exceeding six months”.

In Pulte Homes Corp. v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, 273, a motion for relief was filed within six months of entry of default judgment but more than six months after entry of default. The Court held that the “trial court therefore could not set aside the default under Code of Civil Procedure section 473. And because it could not set aside the default, it also could not set aside the default judgment under Code of Civil Procedure section 473, because that would be ‘an idle act.’ ” (Ibid.) Similarly here, the underlying default was entered over a year ago. Thus, Defendants’ motions are untimely.

Defendants also seek relief pursuant to Code of Civil Procedure section 473.5, subdivision (a), on grounds that they did not receive actual notice of this case. “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.” (Code Civ. Proc. section 473.5, subd. (a).)

Although both Defendants seek relief on the grounds that they did not receive actual notice, both Defendants state that they were affirmatively aware of this case. Both Defendants provide that they did not reply, in part, because they believed they were settling this case and because their attorney filed a motion to be relieved as counsel. Defendants’ former counsel filed a motion to be relieved as counsel on September 16, 2022. Defendants’ own arguments contradict their claim that they were unaware of the present case.

Defendants have failed to demonstrate sufficient grounds for relief from the default. Defendants’ motions to set aside entry of default are denied.

CONCLUSION

Defendants’ motions to set aside entry of default are DENIED.

Dated: January 3, 2024 ___________________________________

Joel L. Lofton

Judge of the Superior Court