Judge: Margaret L. Oldendorf, Case: 22AHCV00342, Date: 2023-03-08 Tentative Ruling


Case Number: 22AHCV00342    Hearing Date: March 8, 2023    Dept: P

 

 

 

 

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

 

AG ARCADIA, LLC, a California limited liability company, doing business as HUNTINGTON DRIVE HEALTH AND REHABILITATION CENTER,

 

                                            Plaintiff,

vs.

 

DAVID LEMUS, an individual; PAULA LEMUS, an individual; and DOES 1-20, inclusive,

 

                                            Defendants.

 

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Case No.: 22AHCV00342

 

[TENTATIVE] ORDER GRANTING MOTION BY DEFENDANT PAULA LEMUS FOR RELIEF FROM DEFAULT AND DEFAULT JUDGMENT

 

Date:   March 8, 2023

Time:  8:30 a.m.

Dept.:  P

 

           

            I.         INTRODUCTION

            In this action, Plaintiff Huntington Drive Health and Rehabilitation, a skilled nursing facility, sues for money owed on a contract pursuant to which it provided services to Defendant David Lemus. Defendant Paula Lemus is sued in her role as “Patient Representative,” and “Medi-Cal agent.” Plaintiff alleges Paula Lemus is obligated to reimburse Plaintiff for that portion of David Lemus’s care covered by Medi-Cal.

            After being served with the lawsuit, Paula Lemus, who resides in Nevada, filed an affidavit stating that David Lemus resides at Huntington Drive Health and Rehabilitation. As this document did not constitute an answer or other permissible response, Plaintiff took her default and obtained judgment against her. Paula Lemus (who is proceeding in pro per) now seeks relief from the default and default judgment. Plaintiff opposes on the ground that excusable neglect has not been shown. Where there is even a weak showing of excusable neglect, as here, relief is appropriately granted so that the matter may be heard on the merits. The motion is granted.

 

II.        LEGAL STANDARD

            Code Civ. Proc. §473(b) permits trial courts to relieve a party of a judgment or order taken against the party “through his or her mistake, inadvertence, surprise, or excusable neglect.” A motion for such relief must be accompanied by a copy of the answer or proposed pleading. The statute also requires that relief be sought within six months.

            “The law favors judgments based on the merits, not procedural missteps. Our Supreme Court has repeatedly reminded us that in this area doubts must be resolved in favor of relief, with an order denying relief scrutinized more carefully than an order granting it. As Justice Mosk put it in Rappleyea, ‘Because the law favors disposing of cases on their merits, ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.’ (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 [211 Cal.Rptr. 416, 695 P.2d 713]; see also Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, 1136 [17 Cal.Rptr.2d 408].)” (Id. at p. 980, 35 Cal.Rptr.2d 669, 884 P.2d 126.)” Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134-135, italics in original.

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III.      ANALYSIS

            A. All Procedural Requirements Are Met

            Default was entered against Ms. Lemus on August 17, 2022. This motion was filed January 25, 2023, which is within the six-month window for seeking relief from default. Plaintiff urges that Ms. Lemus has not been diligent in seeking relief. While it is true that she might have acted sooner, she did act within the statutory time period. The motion is therefore timely.

            The motion is also accompanied by a proposed answer. Thus, the procedural requirements for relief are met.

            B. Mistake and/or Excusable Neglect Have Been Shown

            The Declaration of Paula Lemus is sparse; however, she does state the following:  “I had filed in this matter an affidavit on August 11, 2022 (Exhibit C), and since I am a resident of the state of Nevada and was advised that this affidavit would suffice as a proper answer for the instant case, I was shocked when I just found out that a default judgment was filed against me on November 7, 2022.” She also declares, “I did not file the proper answer to this complaint based upon my mistake, surprise, inadvertence, and excusable neglect.”

            Plaintiff argues that this evidence is not sufficient to demonstrate inadvertence or excusable neglect. While additional facts may have provided a stronger showing, because judicial policy favors hearing matters heard on the merits, even this relatively weak evidence is sufficient:

            “In a case like this one, where there would have been no real prejudice had the set-aside motion been granted, the rule is that a party’s negligence in allowing a default to be taken in the first place ‘will be excused on a weak showing.’ (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 740, 216 Cal.Rptr. 300, italics added.)”, La Salle, supra, 36 Cal.App.5th at 140.

           

 

C. Plaintiff’s Request For Monetary Sanction Is Denied

            When discretionary relief is granted, Section 473(c)(1) provides that the court may also do any of the following: (A) impose a penalty of no more than $1,000; (B) direct an offending attorney to pay an amount greater than $1,000 to the State Bar; (C) grant other relief as appropriate.

            Plaintiff asks for monetary sanctions in the amount of $975, indicating this represents fees expended to oppose this motion. Plaintiff cites Section 473(c)(1)(A), which provides for payment of a penalty. Assuming a penalty means the same thing as a monetary sanction, the request is respectfully denied. While there is some authority for requiring that a plaintiff be reimbursed for the cost of obtaining a default and default judgment, Plaintiff cites no authority for reimbursement of the cost of opposing a motion for relief. See Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823, where defendant is to pay plaintiff “his attorneys fees and costs incurred in obtaining the defaults only.” Emphasis in original. Here the fees and costs incurred to obtain the default judgment should not be reimbursed, because they were apparently also incurred in connection with  the default judgment plaintiff obtained as to David Lemus.      

 

IV.      CONCLUSION

            The motion for relief from default and default judgment is granted. The default entered August 17, 2022, against Paula Lemus is set aside. The default judgment entered November 7, 2022, against Paula Lemus is also set aside. Default and default judgment remain as to David Lemus. Plaintiff’s request for a penalty or other sanction is denied.

            Paula Lemus is ordered to separately file ad serve her answer within five days.

            Plaintiff is ordered to provide notice of this order.         

 

           

Dated:                                                                        _______________________________

                                                                                          MARGARET L. OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT