Judge Lee W. Tsao, Case Number: 21NWCV00235, Date: 2023-07-29 Tentative Ruling

Judge: Lee W. Tsao, Case: 21NWCV00235, Date: 2023-07-29 Tentative Ruling

Case Number: 21NWCV00235 Hearing Date: September 14, 2023 Dept: C

GONZALEZ v. LUEVANOS

CASE NO.: 21NWCV00235

HEARING: 09/14/23

I. Defendant’s unopposed Motion Substitute a Successor-In-Interest for Deceased Defendant MILDRED G. GRISHAM is GRANTED.

II. Defendant MILDRED G. GRISHAM’s Moton to Vacate Entry of Default is GRANTED.

Moving Party to give notice.

Motion to Substitute a Successor-in-Interest

This action concerning quiet title over an alleged easement over real property was filed by Plaintiff LUISA MONTES DE GONZALEZ on April 21, 2021.

Default was entered against Defendant MILDRED G. GRISHAM (“Decedent”) on June 14, 2022. The Decedent passed away on December 27, 2022.

“A pending action or proceeding does not abate by the death of a party if the cause of action survives.” (CCP §377.21.) A cause of action against a decedent that survives may be asserted against the decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest. (CCP §377.40). After a defendant dies, the court shall allow the pending action to continue upon motion. (CCP §377.41.)

CCP §377.41 states: “On motion, the Court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest, except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with part 4… of Division 7 of the Probate Code governing creditor claims is first made.”

The Court has reviewed the Declaration of Randall W. Grisham. The unopposed Motion of Randall W. Grisham is GRANTED.

Motion to Set Aside Default

This action was filed on April 21, 2021. Default was entered against Decedent Mildred G. Grisham on June 14, 2022.

CCP §473(b)

Applications under CCP §473(b) must “be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, or proceeding was taken.” (Id.) Default was entered on June 14, 2022. The instant Motion to Set Aside Default and Default Judgment was filed on August 1, 2023—which is more than six months later. The Motion cannot be granted under CCP §473(b).

CCP §473(d)

At any time, “[t]he court…may, on motion of either party after notice to the other party, set aside any void judgment or order.” (CCP §473(d).) The Motion is not granted under CCP §473(d) because Defendant offers no argument or evidence to suggest that the default judgment is void on its face.

CCP §473.5

CCP §473.5 sets the time limit as requiring the motion to be filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment; or (ii) 180 days after service on the party of a written notice that a default or default judgment had been entered. Under CCP §473.5, the Court may set aside a default or default judgment if “(1) [defendant] received through no inexcusable fault of his own, no actual notice of the action in time to appear and defendant, and had not made a general appearance; (2) a default or default judgment has been entered against him by the court; (3) he acted with reasonable diligence in serving and filing the notice of motion to set aside the default or default judgment; and (4) he has a meritorious defense.” (emphasis added) (CCP §473.5.)

The instant Motion was filed more than 180 days after default had been entered.

The requirements of CCP §473.5 are not met.

Equitable Relief

However, even where statutory relief is unavailable, a trial court has inherent, equitable power to set aside a judgment on the ground of extrinsic fraud or mistake. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) In order to obtain such relief, the party in default must show: (1) a meritorious defense; (2) a satisfactory excuse for not presenting a defense to the original action; and (3) diligence in seeking to set aside the default once it was discovered. (Id. at 982.)

There is no proposed Answer attached to the Moving Papers. On September 5, 2023, Defendant filed a Notice of Lodging Proposed Verified Answer to

Complaint. In the interests of justice, the Court exercises its discretion and considers Defendant’s Notice of Lodging (filed in excess of 5 court days prior to this hearing date).

The Court finds that Defendant has sufficiently established each element required to obtain equitable relief. With regard to the first element, Plaintiff may have waived her right to relief because Plaintiff’s purported occupancy may not have been hostile, and because Plaintiff has alternative ways to exit her property. Next, at the time Decedent was served, she was 97 years old, unstable, and had dementia-like symptoms. (Grisham Decl., ¶¶2-3.) Finally, Defendant demonstrates that he acted diligently in moving to set aside the default. Plaintiff argues that Defendant has been aware of this lawsuit since at least January 31, 2022, when he called Plaintiff’s counsel to inquire about it. However, Defendant’s understanding at that time was that there was only “a very slight chance” that an easement wound be granted on the Milna property. (Grisham decl., ¶5.) He understood that Decedent was served “simply because she was an adjacent property owner and that, in fact, the case would likely not involve her at all since the other defendant was the primary defendant whose property had been used by the plaintiff as ingress/egress access for more than 10 years.” (Id.) It was not until Defendant’s conversation with Plaintiff’s counsel in March 2023 that he was advised that the court was likely to grant an easement against the Milna property because “no one had heard from defendant Mildred Grisham.” (Grisham decl., ¶9.)

The Motion is GRANTED. Defendant is ORDERED to file and serve an Answer within 5 days.