Judge: Joel L. Lofton, Case: 22AHCV00805, Date: 2024-01-23 Tentative Ruling
Case Number: 22AHCV00805 Hearing Date: January 23, 2024 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: January 23, 2024 TRIAL
DATE: No date set.
CASE: SOVINA CHAN, v.
RUDY LOYA; and DOES 1 through 10, inclusive.
CASE NO.: 22AHCV00805
MOTION
TO SET ASIDE DEFAULT
MOVING PARTY: Defendant Rudy Loya
RESPONDING PARTY: Plaintiff
Sovina Chan
SERVICE: Filed January 3, 2024
OPPOSITION: Filed January 12, 2024
REPLY: No reply filed.
RELIEF
REQUESTED
Defendant moves to set aside
default and default judgment.
BACKGROUND
This case arises out of Plaintiff Sovina
Chan’s claim (“Plaintiff”) that Defendant
Rudy Loya negligently allows his dogs to go without leashes. Plaintiff
alleges that Defendants’ dogs seriously harmed Plaintiff’s dogs and bit
Plaintiff’s hand. Plaintiff filed this complaint on October 11, 2022.
TENTATIVE RULING
Defendant’s motion to set aside default and 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).)
DISCUSSION
Defendant moves to set aside the default and default judgment entered
against him. Plaintiff initially filed this case on October 11, 2022. Default
was entered against Defendant on July 5, 2023. On December 7, 2023, default
judgment was entered against Defendant.
Defendant argues that this motion
should be granted because service was improper and excusable negligent
establishes ground for discretionary relief. As to the issue of service,
Defendant only briefly mentions the issue and does not provide any legal authority
or evidentiary support to demonstrate his claim that service was improper.
As to excusable neglect, Defendant
provides that he is employed at a Mexican restaurant, had constantly changing
schedules, and preferred to spend his free time at his ex-girlfriend’s home.
(Loya Decl. at p. 1:8-9.) He provides that he was also providing moving
services. (Id. at p. 1:10-11.) He also provides that he prefers
electronic communication, and he relies on his grandfather for important
matters. (Id. at p. 1:11-16.)
“Although a trial
court has discretion to vacate the entry of a default or subsequent judgment,
this discretion may be exercised only after the party seeking relief has shown
that there is a proper ground for relief . . ..” (Cruz v. Fagor America,
Inc. (2007) 146 Cal.App.4th 488, 495.)
“The
statute's ‘broad remedial provisions’ [citation] are to be
‘liberally applied to carry out the policy of permitting trial on the merits’
[citation]. The party seeking relief, however, bears the burden of proof in
establishing a right to relief.” [Citation.] The burden is a ‘ “ ‘double’ ” ’
one: the moving party ‘ “ ‘must show a satisfactory excuse for his default, and
he must show diligence in making the motion after discovery of the default.’ ”
’ ” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.)
Here, Defendant
has failed to demonstrate sufficient grounds for relief from default. “ ‘
“Excusable neglect” ’ is generally defined as an error ‘ “ ‘a reasonably
prudent person under the same or similar circumstances might have made.’ ” ’ ”
(J.W. v. Watchtower Bible and Tract Society of New York, Inc. (2018) 29
Cal.App.5th 1142, 1172.) Defendant does not address why he failed to respond to
the complaint until after default judgment had been entered but merely asserts
he was very busy with work and preferred to spend his time at his
ex-girlfriends house. This does not demonstrate excusable neglect for failing
to respond at all to the service of legal documents.
Additionally,
Defendant’s preference for electronic communications does not present
circumstances where a reasonably prudent person would completely ignore or miss
important physical documents left at and sent to his residence. Defendant does
not address why he failed to respond to the present lawsuit and has further
failed to demonstrate excusable neglect. “ ‘When inexcusable neglect is
condoned even tacitly by the courts, they themselves unwittingly become
instruments undermining the orderly process of the law.’ ” (Don v. Cruz (1982) 131 Cal.App.3d 695, 701.
CONCLUSION
Defendant’s motion to set aside default and default
judgment is DENIED.
Moving Party to provide notice.
Dated: January 23,
2024 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court
Parties who intend to submit on this tentative must send an
email to the court indicating their
intention to submit. alhdeptx@lacourt.org