Judge Lynne M. Hobbs, Case Number: 22STCV12954, Date: 2024-10-29 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV12954, Date: 2024-10-29 Tentative Ruling

Case Number: 22STCV12954 Hearing Date: October 29, 2024 Dept: 61

IGNACIO NAVARRETE, et al. vs OLGA ESTRADA

TENTATIVE

Defendant Olga Estrada’s Motion to Vacate Default Judgment is DENIED.

Plaintiffs to give notice.

DISCUSSION

I. OBJECTIONS

Defendant Olga Estrada objects to portions of the evidence submitted by Plaintiffs Ignacio Navarrette and Sabrina Morales in opposition to Defendant’s motion to vacate default. Objections No. 2–4 are SUSTAINED on grounds of hearsay as to the truth of the representations as to Defendant’s address. Objection No.4 is OVERRULED to the extent that the insurance company’s communication is evidence of Defendant contacting the company about the suit, regardless of the truth of any representations made by the insurance employee.

II. MOTION TO SET ASIDE DEFAULT

Code of Civil Procedure § 473.5 provides another basis to set aside default when a party lacks actual notice of the action:

“When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.” (Code Civ. Proc. § 473.5, subd. (a).)

Defendant Olga Estrada (Defendant) moves to set aside the default entered on August 23, 2022, and the judgment entered on November 14, 2022, on the grounds that she lacked actual notice of the lawsuit. Defendant argues that the address of substitute service on Sharp Avenue in Arleta is not her residence address, which during the relevant period has been on Judd Street in Pacoima. (Estrada Decl. ¶ 6.) Defendant argues that Plaintiffs were aware that she did not live on the property because Plaintiffs have continuously resided as tenants of a rear unit of the Sharp Avenue property. (Estrada Decl. ¶ 5.) In a previous action to obtain a restraining order against Defendant filed in January 2021, Plaintiffs listed Estrada’s address as “unknown” (Estrada Decl. ¶ 7, Exh. A.) Defendant testified at that proceeding that she lived on another property. (Estrada Decl. B.) Additionally, in settlement of a prior unlawful detainer action between the parties, Defendant made payments to Plaintiffs directly at her Pacoima residence. (Estrada Decl. ¶ 8, Exh. D.) Defendant states that she was not made aware of this litigation until March of 2024 by her insurance company. (Estrada Decl. ¶ 3.)

Plaintiffs in opposition note that Defendant had previously listed the Sharp Avenue address as her residence or mailing address in prior official papers. Defendant listed that address as her own in the header of her pro per unlawful detainer complaint. (Brinton Decl. Exh. A.) That was also the address she directed Plaintiffs to pay rent to through her three day notice to pay rent or quit. (Ibid.) The same address was listed on Defendant’s summons in that case. (Brinton Decl. Exh. B.) Plaintiffs present documents by the City of Los Angeles served to Defendant at that address, as well as a declaration page from an insurance policy listing the Sharp Avenue address as hers, this court considers this evidence for a non-hearsay purpose as per the objections. (Brinton Decl. Exhs. C–E.) Plaintiffs also present evidence that they attempted to reach out to Defendant at the Sharp Avenue address by mail to notify them of the litigation before the default or default judgment were filed. (Brinton Decl. ¶ 8, Exh. F.) And Plaintiffs’ counsel states that he was contacted by Defendant’s insurer in November 2023, regarding the claims against Defendant. (Brinton Decl. ¶ 11.)

Defendant has not shown a lack of actual notice sufficient to satisfy Code of Civil Procedure § 473.5. Despite claiming that she does not reside at the address, she previously listed the address as hers in her prior pro-per verified court filings, indicating that the address was either her residence or mailing address under California Rules of Court, Rule 2.111. Defendant does not deny receiving mail at this address. Rather, in reply, Defendant does not explain the prior inconsistent representations. Defendant’s counsel declares that the papers were prepared by her prior attorney, but provides no foundation for this assertion, except an indication in the unlawful detainer proceeding that Defendant at one point retained an attorney. (Lyden Decl. Exh. A.) Defendant does not account for the prior representations that this was her address. Nor does Defendant account for Plaintiffs prior efforts to reach her at this same address.

The motion was also unreasonably delayed. A motion for relief under Code of Civil Procedure § 473.5 must be made within a “reasonable time,” not to exceed “the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” (Code Civ. Proc. § 473.5, subd. (a).) Here, by Defendant’s own account, she was made aware of the default judgment in March 2024, (Estrada Decl. ¶ 3.) Defendant then waited six months before filing the present motion on September 9, 2024. Defendant provides no reason for the delay.

Moreover, given the testimony of Plaintiff’s counsel that he was contacted by Defendant’s insurer in November 2023 regarding this case, it is likely that Defendant was made aware of this suit around the same time, further adding to the delay.(Brinton Decl. ¶ 11.)

Defendant also seeks relief on equitable grounds. (Motion at pp. 5–6.) “After six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) These equitable grounds include extrinsic fraud and extrinsic mistake. Extrinsic mistake occurs “when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.” (Id. at p. 981.) And “[f]raud is extrinsic where the defrauded party was deprived of the opportunity to present his or her claim or defense to the court, that is, where he or she was kept in ignorance or in some other manner, other than from his or her own conduct, fraudulently prevented from fully participating in the proceeding.” (Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 26–27.)

Relief on the ground of extrinsic fraud or mistake is not available to a party if that party has been given notice of an action yet fails to appear, without having been prevented from participating in the action. 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[ ], the moving party must demonstrate diligence in seeking to set aside the default once ... discovered. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 503.)

Defendant has not shown any of the above elements entitling her to equitable relief. She has not offered a meritorious defense to the action. She has not articulated a satisfactory excuse for failing to appear, given her prior use of the same address in other actions. And she has not demonstrated diligence in seeking relief, but has delayed bringing the present motion without explanation.

The motion is therefore DENIED.