Judge: Margaret L. Oldendorf, Case: 23PDUD01165, Date: 2023-08-04 Tentative Ruling

Case Number: 23PDUD01165    Hearing Date: August 4, 2023    Dept: P

 

 

 

 

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

 

12303 MOORPARK PROPERTY LLC,

 

                                            Plaintiff,

vs.

 

MARGARET REGISTER; and DOES 1 to 20,

 

                                            Defendants.

 

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Case No.: 23PDUD01165

 

 

[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION FOR RELIEF FROM DEFAULT

 

Date:   August 4, 2023

Time:  8:30 a.m.

Dept.:  P

 

         

 

          I.        INTRODUCTION

          Margaret Register, the defendant in this unlawful detainer action, seeks an order setting aside the default entered against her. Register is self-represented. The motion is made pursuant to the mandatory provision of Code Civ. Proc. §473(b) and is supported the declaration of an attorney who avers that he is “assisting” Register in this action.

          Mandatory motions for relief from default require two things: an affidavit by an attorney representing the party; and a showing that default was actually entered through the attorney’s fault. Register’s motion fails because she is self-represented in this action; and there is no evidence that the attorney who provided a declaration represents her. Absent such evidence, there is no basis for granting the relief requested. The motion must be denied.       

 

II.       LEGAL STANDARD

          Code Civ. Proc. §473(b) permits the court to relieve a party from a judgment, dismissal, or order taken against the party through his or her mistake, inadvertence, surprise, or excusable neglect. It further provides, “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.” A second provision, commonly known as the “mandatory” portion of the statute, provides as follows:

          “Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.”

 

III.     ANALYSIS

          A. Procedural History

          This action was filed April 13, 2023. On April 21, 2023, Register filed a motion to quash, with a hearing date of May 2, 2023. On April 24, 2023, Plaintiff 12303 Moorpark Property LLC’s application to post was granted. On May 1, 2023, Moorpark filed proof of service. That same date, Register took her motion to quash off calendar and filed a new motion to quash, this time set for hearing May 9, 2023.

          On May 9, 2023, the motion to quash was denied for failure to comply with Code Civ. Proc. §1167.4, which requires that a motion to quash be not more than 7 days from notice of the motion. Here, the May 9 hearing date was more than 7 days from the May 1 notice of motion.

          On May 16, 2023, Register filed a document captioned, “Notice of Filing and Automatic Prevention of Default.” The notice indicates that Register had filed a writ of mandate with the appellate department under Code Civ. Proc. §418.10(c). On May 19, 2023, the appellate division mailed notice of its order denying the petition.

          Default and default judgment entered May 23, 2023, were later vacated by the court, and the writ of execution recalled. On June 20, 2023, default and default judgment were again entered against Register. Register filed the current motion on July 7, 2023, setting it for hearing August 4, 2023.

          On July 11, 2023, Register’s ex parte application for stay of execution was granted.

          B. No Attorney Affidavit of Fault

          Neither the statute nor the case Register relies on supports the relief she requests. The mandatory provision of the code only applies to attorneys who can verify under oath that attorney error resulted in the entry of default “against his or her client.” Attorney Ken Carlson does not aver that Register is his client. In fact, rather than so stating, Carlson clarifies that he is “assisting” Register. Because Carlson has not declared Register to be his client, and because there is no evidence that he is her client, the Carlson Declaration cannot provide a basis for mandatory relief.

          SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511 clarifies that an attorney providing an affidavit need not be the attorney of record in the action so long as the default or dismissal was taken against his or her client. There, the attorney represented the party in a separate bankruptcy action:

          “We find nothing in the language of section 473, subdivision (b) to suggest that the Legislature intended the mandatory relief provision to be limited to those circumstances where the attorney affidavit of fault is signed by the defaulting or dismissed party’s attorney of record in the civil case. While the Legislature uses the phrase ‘attorney of record’ three times in section 473, subdivision (b), it does not do so in the mandatory relief provision. Instead, the mandatory relief provision provides that where ‘an attorney’s’ sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect accompanies a proper motion, the court shall vacate a default judgment or dismissal entered ‘against his or her client.’ (§ 473, subd. (b).) By its language, the statute only requires the affidavit be executed by an attorney who represents the client and whose mistake, inadvertence, surprise or neglect in fact caused the client's default or dismissal.” Id. at 517, italics in original.

          Because there is no evidence that Carlson represents Register in this action or any other, his declaration cannot form the basis for relieving Carlson from default. The motion is on that basis denied.      

 

IV.     ORDER

          Register’s motion for relief under Code Civ. Proc. §473(b)’s mandatory provision is denied.  Plaintiff is ordered to give notice.

         

 

 

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT