Judge Lee W. Tsao, Case Number: 23NWCV00792, Date: 2024-07-30 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV00792, Date: 2024-07-30 Tentative Ruling

Case Number: 23NWCV00792 Hearing Date: July 30, 2024 Dept: C

Corrine Perez vs. Gilbert Rios

Case No.: 23NWCV00792

Hearing Date: July 30, 204 @ 9:30 a.m.

TENTATIVE RULING

Defendant Gilbert Rios’s Motion to Set Aside Judgment is CONTINUED to August 27, 2024 at 9:30 a.m. in Department SE-C. Defendant is ORDERED to file and serve a proposed answer or other responsive pleading by August 16, 2024.

Defendant to give notice.

Background

On March 15, 2023, Plaintiff Corrine Perez (“Plaintiff”) filed suit against Defendant Gilbert Rios (“Defendant”) requesting partition of real property by sale for the Subject Property located at 14619 Robert St., Bellflower, CA 90706. The parties are siblings who allegedly inherited the property from a family trust on June 25, 2020. (See Complaint, ¶ 8, Ex. 2.) An issue arose when Defendant Rios allegedly moved into the property with promises to buy out Plaintiff, but now refuses to pay rent or buy out Plaintiff. (Complaint, ¶¶ 10-11.) Plaintiff wishes to partition the property and obtain funds for property taxes lost rental profits.

Default was entered against Defendant on June 8, 2023. Judgment was entered on September 21, 2023. Defendant moves to set aside judgment pursuant to CCP § 473, subd. (b).

Legal Standard

“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 accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (CCP § 473, subd. (b).)

Timeliness

The instant motion was filed on February 13, 2024, within six months of entry of judgment on September 21, 2023. Thus, the motion is timely.

Merits

Defendant represents that on April 11, 2023, he retained former counsel Ronen Zargarof. (Rios Decl., ¶ 3.) Defendant contends that Zargarof provided updates and reassurances that the case was progressing, and Defendant believed him. (Rios Decl., ¶ 11.) Eventually, Zargarof ceased communicating with Defendant. (Rios Decl., ¶ 19.) In December 2023, Defendant learned for the first time that default had been entered against him. (Rios Decl., ¶ 20.) Defendant has attached text message exchanges with Zargarof as evidence. (Mot., Exhibits A-I.) From April 11, 2023 to July 31, 2023, Defendant paid Zargarof a total of $50,957.28. (Rios Decl., ¶ 4.)

The Court is inclined to grant the motion. The policy of hearing cases on their merits is well-established. (See, e.g., Berman v. Klassman (1971) 17 Cal.App.3d 900.) Given the liberality associated with Motions to Set Aside Defaults, the Court finds Defendant’s declaration sufficient to warrant relief. The law favors trials on the merits. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.)

However, subdivision (b) of CCP §473 requires Defendant to attach an Answer or other responsive pleading to the motion. This was not done. The terms of CCP §473(b) are mandatory, compliance is not optional. Accordingly, this matter is CONTINUED as indicated above to enable Defendant the opportunity to cure the procedural defect so that this matter may proceed on the merits. Defendant is ORDERED to file and serve a proposed answer or other responsive pleading by August 16, 2024.