Judge: Joel R Wohlfeil, Case: 37-2023-00023361-CU-BC-CTL, Date: 2023-12-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 28, 2023

12/01/2023  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2023-00023361-CU-BC-CTL NICHOLSON VS BRIGHTION PLACE SPRING VALLEY LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Default, 09/21/2023

The Motion (ROA # 23) of Defendant BRIGHTON PLACE SPRING VALLEY (erroneously sued as BRIGHTION PLACE SPRING VALLEY LLC) ('Defendant') for an order for relief from the Default entered against Defendant by this Court Clerk on August 24, 2023, is GRANTED. Code Civ. Proc.

473(b).

This Motion was filed within 6 months of the entry of default, and is accompanied by a proposed Answer.

Defendant is ordered to separately file a copy of the Answer with the Court so that it can be assigned a separate ROA number.

'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 .... Notwithstanding any other requirements of this section, 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 ....' Id. The memorandum filed in support of this Motion sets forth the following argument: 'Defense Counsel was informed of the June Service but did not immediately realize it concerned a separate defendant from the ones already named in the Earlier Filed Case. Defense Counsel was under the mistaken belief that the June Service related to the Earlier Filed Case given that the Complaint served in connection with the June Service was from the same Plaintiffs and related to the same set of facts - the treatment and care Sandra Nicholson received while a resident at the Facility. Defense Counsel did not realize that Plaintiff had filed a separate case against the Facility, particularly since no Notice of Related Case had been filed. On that basis, Defense Counsel did not believe a separate responsive pleading was required.' The declaration of attorney Vona S. Ekpebe is problematic because it does not contain the same affirmative and clear admission of a mistake.

Instead, it describes the filing of two similar actions, and then states: 'Upon further examination, Defense Counsel realized that there were two separate cases resulting from the same set of facts and circumstances pending before this same Court and that the defendant named in the Current Action is different from the defendants named in the Earlier Filed Case. Upon reviewing the Register of Actions of Calendar No.: Event ID:  TENTATIVE RULINGS

3021977 CASE NUMBER: CASE TITLE:  NICHOLSON VS BRIGHTION PLACE SPRING VALLEY LLC [IMAGED]  37-2023-00023361-CU-BC-CTL the Current Case, Defense Counsel realized that a Request for Entry of Default had been entered on or about August 24, 2023 against Defendant.' However, from this statement, it is reasonable to infer counsel mistakenly believed only one action had been initiated, as the 'realization' could have only occurred if the mistaken belief existed. Therefore, this Motion is granted on the basis of counsel's mistake.

Finally, although the Notice of Motion also references Code of Civil Procedure section 473.5 (lack of actual notice), there is no argument or evidence supporting this basis for relief.

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3021977