Judge: Margaret L. Oldendorf, Case: 23AHCV00045, Date: 2023-05-23 Tentative Ruling


Case Number: 23AHCV00045    Hearing Date: May 23, 2023    Dept: P

 

 

 

 

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

 

NAVIGATORS REAL ESTATE, INC., DBA PINNACLE REAL ESTATE GROUP, a California corporation,

 

                                            Plaintiff,

vs.

 

LIPING HUANG, an individual; JACK WEI CHAO, an individual; LINA TA, an individual,

 

                                            Defendants.

 

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Case No.: 23AHCV00045

 

 

[TENTATIVE] ORDER DENYING WITHOUT PREJUDICE MOTION BY DEFENDANT HUANG AND MOTION BY DEFENDANT TA TO SET ASIDE DEFFAULT

 

Date:   May 23, 2023

Time:  8:30 a.m.

Dept.:  P

 

          I.        INTRODUCTION

          In this action, Plaintiff Pinnacle Real Estate Group alleges it entered into a commission agreement with Defendant Liping Huang for the sale real property owned by her in Monrovia. The agreement was for a fixed commission to Pinnacle in the amount of $316,350. Pinnacle alleges it performed its part of the agreement, but that Huang failed to pay the commission as she was convinced by Defendants Jack Wei Chao and Lina Ta not to go through with the transaction.

          The complaint alleges breach of contract against Huang and intentional interference with contractual relations against Chao and Ta. Before the Court are motions by Huang and Ta to set aside the defaults entered against them. Because the motions fail to comply with the requirement that they be accompanied by a proposed answer or other responsive pleading, the motions are denied.

 

II.       LEGAL STANDARD

Code Civ. Proc. §473(b) provides that 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Bolding added.)

“The policy of the law favors a hearing on the merits. (Citation.) Therefore, when a party in default moves promptly to request relief, ‘very slight evidence is required to justify a trial court's order setting aside a default. [Citation.]’ (Ibid.)” Purdum v. Holmes (2010) 187 Cal.App.4th 916, 922.

In addition to Section 473(b), the motions contain citations to a variety of other code sections, none of which appear to apply here. Code Civ. Proc. §473.5 applies where lack of actual notice has resulted in entry of default judgment. Likewise, Section 473(d) only applies to judgments or orders. Civ. Code §1788.61 applies to debt collection actions.

 

          III.     DISCUSSION

          Default was entered against Huang and Ta on March 8, 2023. The motions for relief from default, though they have been timely filed within six months of entry of default, are defective because they are not accompanied by a proposed answer or other responsive pleading. For this reason, the motions are denied without prejudice.

         

IV.     CONCLUSION AND ORDER

          The motions by Defendants Liping Huang and Lina Ta to set aside the defaults entered against them are denied for failure to include a proposed answer or proposed responsive pleading. This order is made without prejudice to these motions being renewed.

          The motion to quash service of the summons and complaint filed by Huang and set for hearing June 20, 2023, is taken off calendar. It may be re-filed if and when the default is set aside. This is because the entry of default terminates a defendant’s right to take any action until the default is set aside. Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386.

          Plaintiff Pinnacle is ordered to give notice of this ruling on all parties.

 

 

         

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT