Judge: Katherine Chilton, Case: 20STLC08822, Date: 2022-09-29 Tentative Ruling

Case Number: 20STLC08822     Hearing Date: September 29, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE MOTION FOR ATTORNEY’S FEES AND COSTS; SET ASIDE SUMMARY JUDGMENT

MOVING PARTY:   Defendant Joellen Chan

RESP. PARTY:         Plaintiff Allen Steelgrave

MOTION TO SET ASIDE MOTION FOR ATTORNEY’S FEES AND COSTS;

SET ASIDE SUMMARY JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Joellen Chan’s Motion to Set Aside Motion for Attorney’s Fees and Costs and Motion to Set Aside Summary Judgment is DENIED.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 YES

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 YES

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     YES

OPPOSITION:          Filed on July 29, 2022 .                                    [   ] Late                      [   ] None

REPLY:                     None filed as of September 28, 2022.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On October 19, 2020, Plaintiff Allen Steelgrave (“Plaintiff”) filed an action against Defendant Joellen Chan (“Defendant”) alleging a wrongful retention of security deposit cause of action.  The action arose out of a lease agreement for a rental unit for approximately 6 weeks, with the lease term expiring on March 28, 2020.  Plaintiff paid a deposit of $1,000.00, which Defendant allegedly failed or refused to return after Plaintiff vacated the rental unit.

Following Defendant’s failure to timely respond, default was entered against Defendant on January 11, 2021.  (1-11-21 Request.)  On March 23, 2021, the parties filed a stipulation to set aside the default entered against Defendant which included a copy of Defendant’s proposed answer.  That same day, the Court set aside the default and ordered Defendant to file an original answer with the Court within 20 days.  (3-23-21 Order.)

On September 9, 2021, Plaintiff moved for summary judgment and on December 6, 2021, the Court granted Plaintiff’s Motion for Summary Judgment.  (12-6-21 Minute Order; 1-12-22 Judgment.)  Judgment was entered against Defendant, ordering Defendant to pay Plaintiff $1,000.00 in actual damages pursuant to Cal. Civ. Code § 1950.5(l), $2,000 in statutory damages pursuant to Cal. Civ. Code § 1950.5(l), and Plaintiff’s costs and reasonable attorney’s fees pursuant to the lease. (1-12-22 Judgment.)

On February 14, 2022, Plaintiff filed a Motion for Attorney’s Fees and Costs.  On August 17, 2022, the Court granted Plaintiff’s Motion in the amount of $9,100.00.  (8-17-22 Minute Order.)

On July 15, 2022, Defendant, in propria persona, filed the instant Motion to Set Aside Motion for Attorney’s Fees and Costs, and Motion to Set Aside Summary Judgment.  On July 29, 2022, Defendant filed a Response to the Motion.  No reply was filed.  The Court, on its own motion, continued the hearing on the instant Motion to September 29, 2022.

II.              Legal Standard

Pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief is available to parties when a case is dismissed.  Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  (Code of Civ. Proc. § 473(b).)  Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”  (Ibid.)  Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.  (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“‘[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.)

Courts may also set aside default or default judgment pursuant to Code of Civil Procedure § 473.5 for lack of actual notice.  “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 of Civ. Proc. § 473.5.)  Furthermore, the notice must be “accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.”

Furthermore, “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”  (Code of Civ. Proc. § 473(d).)

III.            Discussion

Defendant seeks to set aside the Motion for Attorney’s Fees and Costs and the Court order granting summary judgment pursuant to Code of Civil Procedure §§ 473(b), 473.5, and 473(d).  (Mot. pp. 1-2.) 

            As a preliminary matter, the Court finds that Defendant has served and filed a defective Notice of Hearing that lists both the Spring Street Courthouse address – “312 North Spring St. Dept. 25, Los Angeles, CA 90012” and the Stanley Mosk Courthouse – “111 North Hill Street, Los Angeles, CA 90012” as the address where the hearing will be held.  (7-15-22 Mot.)  The hearing for the Motion is scheduled to be held at the Spring Street Courthouse, 312 North Spring Street, Los Angeles, CA 90012.

            In the body of the Motion, Defendant states that the Court should set aside its orders because of Plaintiff’s “inadvertence, surprise, or excusable neglect.”  (Mot. p. 4.)  Defendant states that she was not properly served with the Motion for Summary Judgment and did not have notice of the changed court hearing.  (Mot. p. 5.)  Defendant also argues that the Court should quash service of summons due to lack of jurisdiction.  (Ibid.)

            In her declaration, Defendant states that the Proof of Service for the Motion for Summary Judgment and Motion for Attorney’s Fees states that she was served by mail on September 9, 2021, and February 18, 2022, respectively.  (Chan Decl. ¶ 1.)  However, these Proofs of Service contain “inaccurate and different addresses.”  (Ibid.)  Defendant also states that she never received notice regarding the hearing on the Motion for Summary Judgment and the change in the Non-Jury Trial date being forwarded to December 6, 2021.  (Ibid. at ¶ 2.)  She was not evading service and did not attend the hearing due to lack of notice.  (Ibid.)

            Defendant further argues that the Motion for Attorney’s Fees and Costs “should be deemed inappropriate and should be set aside” because Defendant did not receive notice with respect to this Motion as it was served at the wrong address, and she was not evading service.  (Ibid. at ¶ 3.)

            Defendant states that Plaintiff has served her at “3 different and inaccurate addresses,” including: 2151 Glendon Avenue, Los Angeles, CA 90025, 2153 Glendon Avenue, Los Angeles, CA, 90025, and 11650 W. Pico Blvd PH9, Los Angeles, CA 90064-3263.”  (Ibid. at ¶ 4.)

            Defendant has attached the Proposed Answer to the Summary Judgment Motion as Exhibit A.

            In his Opposition, Plaintiff argues that that Code of Civil Procedure §§ 473 and 473.5 do not apply to the instant case as they pertain to default and default judgments.  (Oppos. p. 2, 7.)  Furthermore, Defendant’s does not “establish any legal or factual justification for setting aside” the Court’s order on grounds of “mistake, inadvertence, surprise, or excusable neglect.”  (Ibid. at p. 4.)  Plaintiff also counters Defendant’s assertion that he did not serve the Motion for Summary Judgment and states that he served it in the same manner as the Notice of Entry of Judgment, which Plaintiff conceded she had received.  (Ibid. at pp. 4-6; Thompson Decl. ¶ 3, Exs. 2-6.)  Defendant’s Motion is also untimely as it was filed more than six months after the Court granted summary judgment on December 6, 2021, and Plaintiff served it on Defendant on January 12, 2022.  (Ibid. at pp. 6-7.)

Plaintiff further argues that Defendant does not make any arguments that the judgment is void, per Code of Civil Procedure § 473(d).

Finally, Code of Civil Procedure § 473.5 does not apply because Defendant is challenging the judgment and order on attorney’s fees, not service of summons.  (Ibid. at p. 9.)  Defendant made a general appearance in the case, set aside the default, and submitted an answer; thus, she is not entitled to relief pursuant to Code Civ. Proc. § 473.5.  (Ibid.; Thompson Decl. ¶ 2; Ex. 1.)

            The Court does not find sufficient basis or legal authority to set aside its order granting Summary Judgment.  First, Defendant’s Motion on the grounds of “inadvertence, surprise, or excusable neglect” is not timely as it was filed more than six months after judgment was entered or served on Defendant.  Defendant’s argument that she was served at the wrong address is not warranted because Proofs of Service filed for the Motion for Summary Judgment, Notice of Ruling on Summary Judgment Motion, and Second Amended Proof of Service for Judgment, Motion for Attorney’s Fees, and Memorandum of Costs indicate that Defendant was being consistently served at 2153 Glendon Ave, Los Angeles, CA 90025.  (9-9-21 Proof of Service; 1-11-22 Proof of Service; 7-14-22.)  This is the same address listed for Defendant on her instant Motion.  There was also no change in hearing date for the Summary Judgment Motion, as it was heard on December 6, 2021, as was originally scheduled.  (12-6-21 Minute Order.)

            Furthermore, the Court finds Code of Civil Procedure § 473.5 inapplicable here as it pertains to setting aside default or default judgment due to the service of summons not resulting in actual notice.  Defendant already sought to set aside default on January 13, 2021, and pursuant to a stipulation of the parties, default was set aside, and Defendant was permitted to file an Answer.  (3-16-21 Stipulation.)

            Defendant does not provide any justification for setting aside its orders for being void or containing clerical mistakes.

The Court notes that Plaintiff’s Motion for Attorney’s Fees was granted on August 17, 2022.  Given that the Court does not find justification to set aside its order on the Summary Judgment Motion and its Judgment, entered on January 12, 2022, the Court also does not set aside its order on the Motion for Attorney’s Fees.

            For these reasons, Defendant’s Motion to Set Aside is DENIED.

IV.           Conclusion & Order

For the foregoing reasons, Defendant Chan’s Motion to Set Aside Motion for Attorney’s Fees and Costs and Motion to Set Aside Summary Judgment is DENIED.

Moving party is ordered to give notice.