Judge: Kevin C. Brazile, Case: 24STCV09556, Date: 2024-08-23 Tentative Ruling

Hearing Date: August 23, 2024

Case Name: Demussat v. Stakis, et al.

Case No.: 24STCV03797

Matter: Motion to Set Aside Default/Default Judgment

Moving Party: Defendant Stassia Stakis

Responding Party: Plaintiff Olivier Demussat

Notice: OK

Ruling: The Motion is denied.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On February 14, 2024, Plaintiff Olivier Demussat filed a Complaint against Defendant Stassia Stakis, alleging that Stakis, his landlord, improperly retained his security deposit.  

On May 10, 2024, a default was entered against Defendant.

On July 2, 2024, Defendant Stakis filed a Motion to Set Aside her default.

On July 3, 2024, the Court entered a default judgment against Defendant in the amount of $60,067.61.

Stakis seeks to set aside her default and default judgment because “after being served with the Complaint and Notice of Case Management Conference, Defendant erroneously believed she did not have to appear until the court date. Defendant retained COUNTS LAW FIRM, PC in June 2024 who discovered that Plaintiff filed Request for Default and said Default was entered on 5/10/24.  Defendant did not understand that she needed to respond prior to the 7/3/24 court hearing. This was regrettable negligence in not retaining counsel sooner and followed by this expeditious request to vacate the default, justifies relief from the default.”  Stakis seeks relief under the discretionary provision of Code Civ. Proc. § 473(b).

The discretionary provision of Code Civ. Proc. § 473(b) provides, “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 made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”  The statute is liberally construed in order to give effect to the policy favoring resolution of disputes on their merits.  (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.)  To be entitled to relief under the statute, the moving party must demonstrate a satisfactory excuse for his or her default, as well as diligence in seeking relief after discovery of the default.  Whether the moving party has carried this burden is a question to be resolved in the discretion of the trial court.  (Ibid.)

For relief to be warranted, any mistake must be something other than professional incompetence or ignorance of the law.  (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.)  The term “surprise” refers to “some condition or situation in which a party is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.”  (Ibid., internal quotations omitted.)  Similarly, to be excusable, a litigant’s inadvertence or neglect must have been “such as might have been the act of a reasonably prudent person under the same circumstances.”  (Ibid.)

On August 9, 2024, the Court issued a tentative ruling as follows:

Here, it is not apparent how the negligence or mistake of fact/law at issue was excusable or reasonable.  Defendant believed that she did not need to file an answer and could instead appear at a July 2024 hearing.  This is inexcusable.  If Defendant had read the summons, she would have known that she had an obligation to file a responsive pleading.  Notably, “Mistake is not a ground for relief under section 473, subdivision (b), when ‘the court finds that the ‘mistake’ is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law. . . .”  (Henderson v. Pac. Gas & Elec. Co. (2010) 187 Cal.App.4th 215, 229.)  

Further, there is evidence that on May 13, 2024, Defendant’s agent left a voicemail for Plaintiff’s counsel, stating: “Hello, my name is Susan Edwards Driskel and I work for Stassia Stakis. I am calling you [ ] to see if you can give me a number, a figure of how much she owes your client because she wants to pay that amount to avoid a default judgment. So my number is [ ]. Thank you so much. Bye.”  That is, Defendant was aware, as of May 13, 2024, that a default judgment was a real possibility.  If Defendant didn’t know the default was entered at that time, then her credibility as to the need for a responsive pleading is questionable.  If she did know that a default was entered at that point—and, therefore, a default judgment was impending—then she was not diligent in filing the instant Motion about a month and a half later.  (See Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1145 [unexplained delay of 7 weeks rendered motion untimely].)  

The Court, however, ultimately continued the Motion to consider a sur-reply that  Stakis initially filed without authorization.  In that sur-reply, Stakis argues that (a) her conduct was excusable and (b) she and her counsel were diligent in filing the Motion—and if they were not, then counsel seeks mandatory relief via her affidavit.  

The Court need not reach the issue of diligence.  Stakis’ failure to read the summons was inexcusable and directly caused the default.  Stakis argues only that “Defendant, residing in London, and unfamiliar with California legal procedures, mistakenly believed that she did not need to file a response before the court date. Upon receiving the documents, she acted reasonably by contacting a friend to reach out to the plaintiff’s counsel and ultimately sought legal representation. Defendant had never personally read the summons to know of the 30-day deadline, and was only made aware by her friend that a default might be taken if she did not reach out to counsel to request a settlement or extension, which was requested but ignored by Plaintiff’s Counsel.”

The facts that Stakis lives in London and is a layperson do not constitute a valid reason not to read the summons, which would have explained the steps that Stakis needed to take.  (See, e.g., Davis v. Thayer (1980) 113 Cal.App.3d 892, 906 [a party who fails to read a complaint is grossly negligent; a party who reads a complaint and disregards its allegations is careless and indifferent: in either case the neglect is inexcusable]; Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1148–1149 [defendant failed to show excusable neglect where the notice on the face of the summons “was calculated to inform anyone capable of reading English . . . of the necessity of filing an answer with the court”]; Beall v. Munson (1962) 204 Cal.App.2d 396, 398–400 [no excusable neglect where defendant was served with summons but was unfamiliar with processes of law and did not realize his default would be entered if he did nothing]; Squar Milner LLP v. LeClerc (Cal. Ct. App. Nov. 12, 2021) 2021 WL 5275991, at *2 [“Although he stated in his declaration that he thought the date for the case management conference was the date he had to appear in court and he did not realize he had to respond to the complaint before then, he does not explain why he failed to read the summons . . . We find no abuse of discretion in the trial court's determination that these actions were not those of a ‘reasonably prudent person.’ ”].)  

Stakis relies on Elston v. City of Turlock (1985) 38 Cal.3d 227, but Elston is inapposite. There, the attorney explained he did not respond to the request for admissions because his staff had misplaced them. Moreover, he did not just fail to respond, he was unaware of the existence of the discovery.  Here, it is undisputed Stakis was served with the summons and complaint and failed to provide any excuse for not reading the summons or providing it to counsel.

Thus, the Court’s conclusion is unchanged.  The Motion is denied.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.