Judge: Malcolm Mackey, Case: 22STCV14252, Date: 2023-01-31 Tentative Ruling

Case Number: 22STCV14252    Hearing Date: January 31, 2023    Dept: 55

YMCA ASSOC. OF METRO. L. A. v. 6600 SELMA AVE., LLC          22STCV14252

Hearing Date:  1/31/23,  Dept. 55

#6:   MOTION FOR RELIEF FROM DEFAULT.

 

Notice:  Okay

Opposition

 

MP:  Defendant MADHUBEN KUMAR

RP:  Plaintiff

 

 

Summary

 

On 4/28/22, Plaintiff YMCA ASSOC. OF METRO. L. A. filed a Complaint alleging that defendants, including the lessor and guarantors, are liable for unpaid rent as to a commercial premises.

 

 

MP Positions

 

Moving party requests an order granting relief from default, on grounds including the following:

 

·         Defendant Kumar did not understand what was being served on her given her limited understanding of English.

·         She mistakenly believed her son was handling the matter, as it related to the LLC. As is Indian tradition, Mr. Kumar, Defendant’s oldest son, handles all matters for Defendant.

·         She is elderly, age 67.

·         She is sued as a lease guarantor, not involved in business operations.

·         The companion unlawful detainer case relating to this Lease which moved forward on a very tight time schedule and included substantial discovery, motions to compel, trial preparation and ultimately a summary judgment motion, which was decided on November 22, 2022. During that time, Defendants attempted to settle the related matters globally with Plaintiff.

·         Counsel has health issues.

·         Counsel is a busy solo practitioner.

·         Defendants were hopeful the UD and this matter could be resolved globally. Plaintiff’s counsel made statements on the record in the UD action that Plaintiff agreed settlement, if possible, was in both parties’ best interests.

·         There is a policy to resolve doubts in favor of default relief.

 

 

RP Positions

 

Opposing party advocates denying, for reasons including the following:

 

·         CCP Section 473(b) requires that all such motions “shall be made within a reasonable time” after default occurs, but Ms. Kumar has not done so. Her attorney knew about the default by July 18, 2022, and was told by Plaintiffs’ counsel on July 21, 2022 that the default would not be waived. Ms. Kumar waited four and a half months thereafter to file the Motion. In all, six months elapsed between the time her default was taken and when this Motion was filed.

·         It appears that Ms. Kumar simply assumed that her son would respond to the summons and complaint for her.

·         Because 6600 Selma Ave., LLC is no longer a defendant in this case, there is no risk of multiple, inconsistent judgments by leaving default entered.

·         Being busy counsel does not justify delay.

·         Settlement offers in another, U.D. case, do not justify delay, including because moving counsel did not pursue settlement. 

 

 

Tentative Ruling

 

The motion is granted.

The Court vacates and sets aside default entered 6/8/22.

Having considered the reply and surreply, the Court finds excusable grounds for relief and delays.

The Court finds that Defendant relied upon another to handle retaining a defense attorney.  Further, defense counsel tried to informally resolve the default by letter dated 7/18/22.  In coming days, moving counsel experienced illness, and reasonable hopes of a global settlement that would include the unlawful detainer action.  The motion was filed 12/8/22.

As to defaults entered after defendants relied on other parties to defend, relief is available if defendants were reasonably justified in their reliance under the circumstances.  Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 697.

Generally, serious illnesses of attorneys are extremely good cause for delays.  Hernandez v. Sup. Ct. (2004) 115 Cal. App. 4th 1242, 1247-48 (finding abuse of discretion as to trial court denial of request to reopen discovery, where counsel was seriously ill).  Analogously, denying a request for a continuance after a showing of illness of counsel, may be an abuse of discretion, where counsel was not dilatory, and it is simply a case of human frailty.   E.g., Lerma v. County of Orange (2004) 120 Cal. App. 4th 709, 718.  Denying a continuance request has been allowed, if the evidence failed to show that being incapacitated due to illness caused a need for delay.  See  Mahoney v. Southland Mental Health Assocs. Med. Grp. (1990) 223 Cal. App. 3d 167, 172.

Generally, courts have allowed settlement as a satisfactory excuse for delay in prosecution or filing papers, if negotiations occurred during the relevant time span, and there were mutual efforts inducing a party reasonably to believe they were working towards a probable settlement, as distinguished from the unilateral hope of settlement.  E.g., San Bernardino City Unif. Sch. Dist. v. Sup. Ct. (1987) 190 Cal. App. 3d 233, 239.  Accord  Arnke v. Lazzari Fuel Co., (1962) 202 Cal. App. 2d 278, 281.  Cf.  New Linen Supply v. Eastern Environmental Controls, Inc. (1979) 96 Cal. App. 3d 810, 815 (in the context of the question of waiver of arbitration, opining, “It was certainly reasonable for all parties to postpone formal dispute resolution mechanisms while they were attempting to amicably and informally settle their problems.”).

While just being busy is not excusable neglect, the instant reply declaration also evidences illness and long-term settlement efforts.  Being busy and experiencing stress in meeting deadlines in the practice of law alone is not excusable neglect.  Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1355 (counsel unsuccessfully argued the stresses of a busy practice, the hurry to meet deadlines and obligations of other pending litigation).

In the future, the Court suggests that moving counsel not leave major, meritorious briefing for the reply, as it can cause last-minute due-process issues and a need for the Court to laboriously rewrite rulings.