Judge: Loren G. Freestone, Case: 37-2024-00004211-CU-UD-CTL, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 06, 2024

06/07/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Unlawful Detainer - Residential Motion Hearing (Civil) 37-2024-00004211-CU-UD-CTL CAMDEN DEVELOPMENT INC VS SANDOI [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Costin Sandoi's motion to set aside default judgment, quash the writ of possession, and stay the lockout is GRANTED.

'Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, 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).) Counsel for Sandoi (Jacob Partiyeli) declares that he was retained on February 23, 2024. Attorney Partiyeli immediately prepared an answer, but as a result of his neglect and inadvertence, he did not immediately file it. Attorney Partiyeli attempted to file the answer on February 26, 2024, but the answer was rejected because Camden had filed a request for entry of default a few hours earlier that same day.

Camden argues that the deadline for Sandoi to answer was February 20, 2024, and therefore the default was not entered as a result of Attorney Patiyeli's neglect or inadvertence, but rather as a result of Sandoi waiting too long to retain counsel. However, Sandoi had a right to file his answer up until the time Camden requested entry of default. If Attorney Patiyeli had filed the answer the same day he prepared it, Camden would not have been able to request entry of default three days later. (See Goddard v. Pollock (1974) 37 Cal.App.3d 137, 141–143.) Camden also argues that Sandoi unduly delayed seeking relief. A 'motion based on attorney fault need not show diligence in seeking relief. The motion is timely if filed within six months of the entry of the default judgment or dismissal.' (Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1147; see Code Civ.

Proc., § 473, subd. (b).) Here, the motion was timely filed slightly more than one month after the default judgment was entered.

Camden also argues that the motion is not in proper form because it was not accompanied by a proposed answer. Attorney Patiyeli's supporting declaration indicates that a proposed answer is attached as an exhibit, but no such exhibit was in fact attached. However, by attempting to file the answer on February 26, 2024-mere hours after Camden filed its request for entry of default-Sandoi Calendar No.: Event ID:  TENTATIVE RULINGS

3112606  24 CASE NUMBER: CASE TITLE:  CAMDEN DEVELOPMENT INC VS SANDOI [IMAGED]  37-2024-00004211-CU-UD-CTL substantially complied with the proposed pleading requirement. (See Los Angeles County v. Lewis (1918) 179 Cal. 398, 400.) The motion is therefore granted. The default and default judgment are set aside, and the writ of possession is recalled. Within 5 days, Sandoi shall file the answer that was previously rejected by the clerk.

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