Judge Lynette Gridiron Winston, Case Number: 24PSCV00819, Date: 2024-05-13 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 24PSCV00819, Date: 2024-05-13 Tentative Ruling

Case Number: 24PSCV00819 Hearing Date: May 13, 2024 Dept: 6

Bridgetown Investments, LLC v. Prime Time Basketball Association, Inc.
Prime Time Basketball Association Inc. Motion to Set Aside Default, Vacate Judgment, and Recall the Writ of Possession

TENTATIVE RULING

The Court GRANTS the Motion to Set Aside Default, Vacate Judgment, and Recall the Writ of Possession. The default and default judgment will be set aside and vacated. The writ of possession will be recalled and quashed. The proposed Answer will be deemed filed forthwith.

Defendant Prime Time Basketball Association is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is an unlawful detainer action arising from the Defendant’s alleged failure to pay rent. On March 15, 2024, Plaintiff Bridgetown Investments, LLC (“Plaintiff”) filed a complaint against Defendant Prime Time Basketball Association, Inc. (collectively, “Defendant”), and Does 1 through 10, alleging a single cause of action for non payment of rent.

On April 2, 2024, Plaintiff filed a proof of service indicating that Defendant was served with the summons and complaint by personal service on March 23, 2024.

On April 3, 2024, Plaintiff requested, and default was entered against Defendant for possession only.

The Clerk of the Court entered default judgment against the Defendant for possession only on April 5, 2024.

On April 26, 2024, Defendant filed a motion to set aside default, vacate judgment, and recall the writ of possession (the “Motion”). Plaintiff filed opposition on May 3, 2024. Defendant replied on May 8, 2024.

The Motion is brought pursuant to Code Civ. Proc. §§ 128(a)(8)(A) and (B) and 473(b) on the grounds that the Default and Judgment were taken against Prime Time due to Prime Time’s mistake, inadvertence, surprise and excusable neglect, and due to extrinsic fraud that induced Prime Time to believe that it would not need to file a responsive pleading prior to default being entered by this Court.

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.)

DISCUSSION

Motion to Set Aside under C.C.P. § 473(b)

The Court finds the motion to be timely filed. Default was entered against Defendant on April 3, 2024. (04/03/24 Request for Entry of Default.) Default Judgment was entered on April 5, 2024. (04/05/24 Judgment.) Defendant filed the instant motion to set aside on April 26, 2024, well within the six-month period. Thus, the motion is timely.

Here, Defendant is not entitled to mandatory relief because the motion does not include an accompanying attorney affidavit of fault. The Court exercises its discretion and finds that Defendant is entitled to discretionary relief under Section 473 as Defendant’s actions constitute a mistake or excusable neglect.

Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’ [Citations.] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations].” (Grappo v. McMills (2017) 11 Cal.App.5th 996, 1005-1006.)

Defendant states that on or about February 13, 2024, Ace Fushan Lee attended a meeting with Plaintiff’s managing member, David Perez. (Lee Decl. ¶ 3.) Defendant came to an agreement with Plaintiff to pay back five months of outstanding rent and provided Plaintiff with a schedule for four payments to be made in March 2024 at two staggard intervals and one payment to be made in April 2024. (Id.; Exh B.) Defendant avers that Plaintiff assured Defendant that once Defendant made its payments under the plan, Plaintiff would not proceed in prosecuting the action. (Id.) Defendant swears that it began making payments under the agreement and then Plaintiff filed its Complaint initiating this action. (Id.)

Although Defendant acknowledges being served with the Summons and Complaint, Defendant did not file an answer to the Complaint. However, Defendant argues that it did not file an answer believing that it did not need to do so because of the agreement with Plaintiff that if Defendant made the payments, Plaintiff would not proceed with the lawsuit. In fact, Defendant produced evidence that it made four payments to Plaintiff in February and March 2024, after the meeting and before the lawsuit was filed, and that Defendant made another payment to Plaintiff on April 3, 2024 after the lawsuit was filed and served, in reliance upon their agreement. (Lee Dec., Exh. A.) While Plaintiff argues that it never agreed to the payment plan or to forego the lawsuit, Plaintiff did not respond to the text messages from Defendant confirming the payment plan and subsequent updates of payments made and to be made. Plaintiff also continued to accept the payments, and did not notify Defendant that Plaintiff would not allow Defendant to remain in possession of the premises despite its efforts to become current on the payment of the rent. It is unlikely that Defendant would have made the payments after the meeting, and even after the lawsuit was filed, unless it believed there was some agreement for it to remain in possession of the premises. The Court finds that Defendant’s failure to file an Answer to the Complaint was the result of its mistake and/or excusable neglect. The Court also finds that Plaintiff will not suffer prejudice if the motion for relief is granted and Plaintiff has not demonstrated otherwise. The delay in obtaining possession of the premises and the cost to prosecute the contested action is not sufficient for the Court to deny Defendant the right to defend this case on the merits.

Based on the foregoing, the Motion is GRANTED.

CONCLUSION

Defendant Prime Time Basketball Association is ordered to give notice of the Court’s ruling within five calendar days of this order.