Judge: Malcolm Mackey, Case: 22STCV12012, Date: 2023-01-18 Tentative Ruling
Case Number: 22STCV12012 Hearing Date: January 18, 2023 Dept: 55
TAPIA
v. SUAREZ 22STCV12012
Hearing Date: 1/18/23,
Dept. 55
#9: MOTION TO SET ASIDE DEFAULT AND DEFAULT
JUDGMENT, IF ENTERED.
Notice: Okay
Opposition
MP:
Defendants ALBERTO LUIS SUAREZ and BRENDA E. CANALES.
RP:
Plaintiff
Summary
On 4/8/22, Plaintiff ADRIAN TAPIA filed a Complaint alleging:
On or about December 9, 2011, Plaintiff purchased 13855 McClure Avenue, Unit 3,
Paramount, CA, as a joint tenant with Defendant, ALBERTO SUAREZ Defendant, SUAREZ, as a retaliation for the
separation initiated by Plaintiff’s daughter, Bianca Tapia, fraudulently
prepared, without consideration, and executed the CANALES Deed of Trust (DOT)
in the name of his mother, Defendant, BRENDA CANALES, in the sum of
$100,000.00, without the knowledge, consideration and/or authorization of
Plaintiff, TAPIA, and executed closing documents on behalf of Plaintiff, TAPIA,
with Defendants, ERIKSON, RUIZ, CENTURY 21, LINCOLN, LOPEZ, and BELTRAN’s
assistance, to close the sale of the property without Plaintiff’s knowledge or
consent, in order to defraud Plaintiff of his equity in the property, in order
to hurt Bianca for leaving him.
The causes of action are:
1. FRAUD
2. NEGLIGENT
MISREPRESENTATION
3. SUPPRESSION OF FACT
4. BREACH OF FIDUCIARY
DUTY
5. BREACH OF WRITTEN
CONTRACT
6. NEGLIGENCE
7. BREACH OF GOOD FAITH
AND FAIR DEALING
8. VIOLATION OF FAILURE
TO DISCLOSE §1102
9. DECLARATORY RELIEF.
MP
Positions
Moving parties request an order vacating and setting
aside default and any default judgment, on grounds including the following:
·
Defendants had trouble obtaining funds to
pay an attorney until 10/20/22.
·
Defendants lacked sophistication to defend
themselves.
·
Defendants have never been part of a court
proceeding before.
RP
Positions
Opposing party advocates denying, for reasons
including the following:
·
Defendants motion is void of any evidence of mistake, surprise,
or excusable neglect to warrant relief.
·
Defendant, ALBERTO LUIS SUAREZ is no
novice to the legal system, but instead has filed multiple past cases.
·
There were unexplained delays. Defendants were served September 19, 2022.
Defendants claim that they did not have the funds to hire attorney until
October 20, 2022. Default entered
against Defendant SUAREZ was on October 28, 2022, and against CANALES was on
November 2, 2022. Counsel attempted to
file the Answer on or about November 15, 2022.
·
Defendants assertion of lack of funds is
not credible. This case involves
Defendants' theft of $100,000.00 from Mr. TAPIA.
Tentative
Ruling
The motion is granted.
The Court vacates and sets aside defaults entered 10/28/22
and 11/2/22 as to defendants ALBERTO LUIS SUAREZ and BRENDA E. CANALES.
Defendants’ proposed Answer may be served and filed,
as a separate document, within 10 days.
There is discretion to find excusable neglect where a
party evidenced temporary lack of funds to retain counsel. Lee v. Wells Fargo Bank (2001) 88 Cal.
App. 4th 1187, 1201.
Additionally, the unexplained period of delay in
filing the motion, was only brief, and does not preclude relief. Distinguishably, it may be an abuse of
discretion to grant relief under Code of Civil Procedure Section 473 where
there is unexplained delay of over three months before moving for relief. Huh v. Wang (2008) 158
Cal.App.4th 1406, 1421 n.4.