Judge Kerry Bensinger, Case Number: 21STCV44911, Date: 2024-05-23 Tentative Ruling

On December 9, 2021, Plaintiff, Julian Stuart, filed a Complaint against Defendant, LA Dorm, LLC, arising from Plaintiff’s tenancy at a property owned and operated by Defendant. Plaintiff alleges breaches of the warranty of habitability, among other claims. Defendant answered the complaint on December 30, 2021.

On August 28, 2023, Defense Counsel substituted out of the case. Defendant did not retain counsel.

On September 5, 2023, Plaintiff announced ready for trial. Defendant requested additional time to acquire legal representation. The court continued the Final Status Conference to November 3, 2023.

On November 3, 2023, Defendant did not appear. Accordingly, the court ordered Defendant’s answer stricken and its default entered.

On February 14, 2024, Defendant filed this motion to set aside the default under Code of Civil Procedure section 473, subdivision (b), and concurrently filed a substitution of attorney.

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 discretionary relief to vacate the default on the following grounds: (1) a timely response to the complaint was not filed because previous counsel substituted out of the case without advising Defendant and was unprepared to retain new counsel. (See Declaration of Vladislav Shuliko.) Further, this motion was timely filed within six months of the entry of default. For these reasons, Defendant argues his failure to timely answer the Complaint was the result of his mistake, inadvertence, surprise, or excusable neglect.

In opposition, Plaintiff argues the motion should be denied because Defendant has not offered any competent evidence to justify 473 relief. “The party seeking relief, however, bears the burden of proof in establishing a right to relief.” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.) As Plaintiff correctly points out, entry of default against Defendant was not based on a failure to timely respond to the Complaint. Defendant filed an answer. (See Answer, 12/30/21.) Rather, Defendant’s default was entered because it failed to appear for the Final Status Conference after the court continued the same for two months to allow retention of new counsel. (See Minute Order, 11/3/23.)

Nonetheless, the court grants relief because Defendant states he was not able to retain new counsel and the reasonable inference therefrom is that Defendant did not appear at the November 3, 2023, hearing because Defendant was without counsel. Defendant is now represented. Given that (1) Defendant has retained counsel, (2) this motion was filed within six months of the entry of default, (3) there is no showing of prejudice to Plaintiff if default is set aside, (4) the policy that cases be resolved on their merits, and (5) Defendant’s failure to appear was due to excusable neglect, the court grants discretionary relief pursuant to CCP § 473, subd. (b).

Defendant shall file its answer within 30 days. A case management conference is scheduled for August 6, 2024, at 9am.

Kerry Bensinger

Judge of the Superior Court