Judge: Joel L. Lofton, Case: 23AHCV02924, Date: 2024-03-11 Tentative Ruling

Case Number: 23AHCV02924    Hearing Date: March 11, 2024    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      March 11, 2024                                               TRIAL DATE: No date set.

CASE:                         ASN PASADENA LLC, v. MARIKA MCWHOTER and DIETRICH RILEY

CASE NO.:                 23AHCV02924

MOTION TO SET ASIDE DEFAULT

MOVING PARTY:               Defendants Marika McWhoter and Dietrich Riley (“Defendants”)

RESPONDING PARTY:      No response filed.

SERVICE:                              Filed February 23, 2024

RELIEF REQUESTED

             Defendants move to set aside the entry of default and default judgment entered on February 14, 2024.

BACKGROUND

             This case arises out of Plaintiff ASN Pasadena LLC’s (“Plaintiff”) unlawful detainer claim for property located at 25. S. Oak Knoll Avenue #517, Pasadena, California 91101. Plaintiff filed its complaint on December 19, 2023.

TENTATIVE RULING

Defendants’ motion to set aside default and default judgment is GRANTED.

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 default and default judgment entered against them. On February 14, 2024, default and default clerk’s judgment was entered against Defendants. Defendants raise various grounds to set aside the entry of default and default judgment. 

            However, Defendants’ declaration only addresses grounds pursuant to Code of Civil Procedure section 473.5. Code of Civil Procedure section 473.5 provides: “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.”

            Dietrich Riley provides that he was never notified of the summons and complaint. (Riley Decl. ¶ 2.) Plaintiff has not filed an opposition to the present motion. Defendants have demonstrated that service has not resulted in actual notice to the parties in time to defend the action. Defendants’ motion to set aside default and default judgment is granted.

CONCLUSION

Defendants’ motion to set aside default and default judgment is GRANTED.

Dated:   March 11, 2024                                             ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court