Judge Latrice A. G. Byrdsong, Case Number: 22STLC04767, Date: 2023-10-04 Tentative Ruling

Judge: Latrice A. G. Byrdsong, Case: 22STLC04767, Date: 2023-10-04 Tentative Ruling

*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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Case Number: 22STLC04767 Hearing Date: November 28, 2023 Dept: 25

Hearing Date: Tuesday, November 28, 2023

Case Name: DAVID HRADEC, an Individual v. GEORGE LOOMIS, an Individual

Case No.: 22STLC04767

Motion: Motion to Set Aside/Vacate Default

Moving Party: Defendant George Loomis

Responding Party: None

Notice: NO

Tentative Ruling: Defendant George Loomis’s Motion to Vacate Default is GRANTED.

On the Court’s own motion, the Court strikes the Response to Case Filing filed on February 08, 2023.

Defendant is ordered to file a properly noticed answer within 10 days of the Court’s ruling.

Trial Setting Conference is set for January 10, 2024 at 9:30 a.m. in Dept. 25 of the Spring Street Courthouse.

SERVICE:

[ ] Proof of Service Timely Filed (CRC, rule 3.1300) NO

[ ] Correct Address (CCP §§ 1013, 1013a) NO

[ ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO

OPPOSITION: None filed as of November 20, 2023 [ ] Late [X] None

REPLY: None filed as of November 20, 2023 [ ] Late [X] None

BACKGROUND

On July 19, 2022, Plaintiff David Hradec (“Plaintiff”), in propria persona, filed an action against Defendant George Loomis (“Defendant”) arising out of an alleged breach of contract.

On September 6, 2022, Plaintiff filed Proof of Service by Substituted Service indicating that Defendant had been served on July 26, 2022.

On September 22, 2022, pursuant to Plaintiff’s request, the Clerk entered default against Defendant.

On March 30, 2023, Defendant filed a motion to set aside the default.

On May 4, 2023, the Court denied Defendant's motion on non-meritorious grounds.

On September 29, 2023, Defendant filed the instant Motion to Set Aside/Vacate Default (“Motion”). No opposition has been filed.

MOVING PARTY POSITION

Defendant moves to set aside the default claiming that the default is erroneous as it has properly filed its response on August 17, 2023, through the Courts e-filing system. Defendant additionally claims equitable relief in the alternative claiming that the defense of extrinsic mistake on the part of the Clerk.

OPPOSITION

No opposition has been filed.

REPLY

No reply has been filed.

ANALYSIS

I. Legal Standard

Under Code of Civil Procedure, section 473, subdivision (b), “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.” (Code Civ. Proc., §473(b)). Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) An application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise, or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) When relief from default and a default judgment is based on an attorney affidavit of fault, the six-month period starts to run from the date of the entry of the default judgment. (Code Civ. Proc., § 473, sub. (b); Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 295.)

II. Discussion

Defendant moves to set aside default judgement. The Court notes that no such judgment has been entered. However, default has been entered against Defendant on September 22, 2022. The Court will thus address whether the default should be set aside.

A. CCP section 473(b)

Defendant cites to CCP section 473(b) as authority for relief from default.

Here, the Motion is not timely. CCP section 473(b) provides that an application for relief must be made no more than six months after entry of the order from which it was sought. Here, the order for which relief is being sought was issued on September 22, 2022. For an application to be considered timely it would have needed to have been filed no later than March 22, 2023. Defendant filed his application on September 21, 2023, nearly six months after the six-month deadline. Thus, the motion is untimely. Therefore, the Court cannot set aside the default on statutory grounds.

B. Equitable Grounds

Defendant seeks to set aside the default on equitable grounds because the Clerk’s decision to enter default was an extrinsic mistake due to Defendant filing its response on August 17, 2022.

“To set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last[ly], the moving party must demonstrate diligence in seeking to set aside the default once ... discovered.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.)

First, we examine if Defendant had a meritorious case. Here, the complaint brings a cause of action for breach of contract, specifically that Defendant defaulted on his repayment of loans totaling $11,700.00. (Complaint, 2. See Also Attached Demand Letter.) Additionally, the complaint alleges that Defendant fraudulently used Plaintiff’s credit card adding an additional $8,000.00 owed to Plaintiff which has yet to be paid. (Demand Letter.) Defendant asserts that the loan money was not a personal loan but rather money loaned to a film entity owned by Defendant. (George Loomis Declaration, ¶ 6.) Defendant further states that the money was an investment that went into a film Defendant wrote and directed. (Id.) Defendant states that the funds never went to him and that he did not personally owe Plaintiff the funds. (Id.) This is sufficient to demonstrate Defendant has a meritorious case because Defendant challenges that an agreement was made between the Plaintiff and the Defendant personally. Thus, Defendant satisfies the first element.

As for the second element, Defendant provides the Court with a satisfactory excuse for failing to timely answer the original complaint. Defendant states under penalty of perjury that he filed his reply through the Court’s e-file website on August 17, 2022. (Loomis Declaration, ¶¶ 4, 7.) Defendant also states that upon discovering the mistake he filed the response in person on February 08, 2023. (Loomis Declaration, ¶ 2; See Also Def. Memo., 3.) This provides a satisfactory excuse as to why Defendant failed to timely answer the original complaint because the Defendant is declaring that it was his honest belief that he answered the complaint electronically. Upon realizing the mistake, Defendant took remedial steps to correct his mistake. (Loomis Declaration, ¶ 4.) Thus, Defendant satisfies the second element.

Finally, we examine whether Defendant demonstrated diligence in seeking to set aside the default once it was discovered. Here, Defendant has demonstrated diligence in seeking a set aside. First, Defendant claims to have discovered the default on February 02, 2023, after being informed by the Plaintiff. (Loomis Declaration ¶ 4.) Defendant further states that between the day he claims to have submitted his response on August 17, 2022, and the day he claims to have discovered the default on February 02, 2023, he had no knowledge that his response was not received by the Court. (Id.) Defendant then claims to have filed its response on February 08, 2023. (Id., ¶ 2.) Defendant also filed a motion to set aside the default on March 30, 2023. (03/30/23 Motion to Set Aside.) Defendant declares that since filing that motion, he has learned how to properly submit documents, subsequently filing the current motion. (Loomis Declaration, ¶ 8.) There can be no dispute that through his own recognizance, Defendant has demonstrated his diligence in seeking to set aside the default once he learned of the default as he brought a motion to set aside a little less than two months after he learned of the default and sought to learn what was necessitated to bring the current motion when the previous motion was denied. Thus, Defendant satisfies the third element.

Because Defendant has satisfied all three elements, the Court grants equitable relief in this case.

C. Response to the Complaint

“The entry of a default terminates a defendant’s rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered.” (Devlin v. Kearny Mesa AMC/Jeep/Renaltu, Inc. (1984) 155 Cal.App.3d 381, 385; see also Harbour Vista, LLC v. HSBC Mortgage Services Inc. (2011) 201 Cal.App.4th 1496, 1513 (quoting Devlin, supra, 155 Cal.App.3d at 385).) “‘A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff’s right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.’” (Devlin, supra 155 Cal.App.3d at 385-86 (quoting Brooks v. Nelson (1928) 95 Cal.App. 144, 147-48); see also Harbour Vista, LLC, supra, 201 Cal.App.4th at 1513 (quoting Devlin, supra, 155 Cal.App.3d at 385-86).)

Here, Defendant filed his response to the complaint on February 08, 2023. (02/08/23 Response to case filing.) Default was entered on September 22, 2022. (09/22/23 Request for Entry of Default.) Since the default was entered, Defendant’s right to take any affirmative step in the litigation is terminated until either the default is set aside, or the Court has entered a default judgment. Thus, Defendant’s response filed on February 8, 2023, is improperly filed.

Therefore, the Court, on its own motion, strikes Defendant’s Response to Case Filing filed on February 08, 2023, from the record.

The Court orders the Defendant to file a properly noticed answer within 10 days of the Court’s ruling.

III. Conclusion

Defendant’s Motion to Set Aside/ Vacate Default is GRANTED.

The Court, on its own motion, strikes Defendant George Loomis' Response to Case Filing filed on February 08, 2023.

Defendant is ordered to file a properly noticed answer within 10 days of the Court’s ruling.

A trial setting conference is set for 01/10/2024 at 9:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.