Judge Kerry Bensinger, Case Number: 21STCV29730, Date: 2024-02-14 Tentative Ruling

On August 17, 2021, Plaintiff, Y & Y Properties, LLC, filed a Complaint against Defendant, Chun Wai Tommy Ngan, for Breaches of Personal Guaranty. As alleged, Defendant entered into a written industrial/commercial multi-tenant lease as a guarantor for property at 522 Gladys Ave., Los Angeles, CA, 90013 and thereafter failed to pay the required monthly rent.

On August 31, 2021, Defendant was personally served with the summons and complaint.

On February 1, 2022, Defendant filed an Answer to the Complaint. The Answer was not rejected. Thereafter, the parties participated in case management conferences.

On February 7, 2022, the court found this case was related to Case No. 21STCV17375.

On June 1, 2023, the court noted that Defendant’s Answer was filed after Defendant’s default had been entered. The court set an Order to Show Cause Re: Status of Default and an Order to Show Cause Re: Why the Court should not Strike Defendant’s Answer. The hearings were set for July 7, 2023.

On July 7, 2023, neither Defendant nor Defendant’s counsel appeared at the hearing. The court continued the OSCs to October 18, 2023.

On October 18, 2023, Defendant filed this motion to set aside the default under Code of Civil Procedure section 473, subdivision (b). On the same day, the court discharged the OSCs. The court did not strike Defendant’s Answer.

Code of Civil Procedure section 473, subdivision (b) provides that a court may “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.” In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “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., § 473, subd. (b).)

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Cal.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”].)

Defendant seeks relief to vacate the default on the following grounds: (1) defense counsel actively sought to settle the case prior to the entry of default; (2) defense counsel tried to file an answer on the day default was entered but the pleading was rejected because of the default, and (3) defense counsel realizes in hindsight he should have filed a timely answer but did not do so in part because of stress caused by counsel’s father’s illness. (Zargarof Decl., ¶¶ 2-10.) For these reasons, Defendant argues his failure to timely answer the Complaint was the result of his counsel’s mistake, inadvertence, surprise and excusable neglect.

Defendant is not entitled to relief under CCP section 473(b). As Plaintiff correctly argues, Defendant’s motion is untimely. The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Cal.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”].) Here, Defendant seeks to set aside the default more than twenty-two months after default was entered.

The motion to set aside default is DENIED. Defendant’s answer filed February 1, 2022 is stricken.

Kerry Bensinger

Judge of the Superior Court