Judge: Mark A. Young, Case: 23SMCV04542, Date: 2024-11-13 Tentative Ruling

Case Number: 23SMCV04542    Hearing Date: November 13, 2024    Dept: M

CASE NAME:           LA Housing Outreach LLC v. Medoff, et al.

CASE NO.:                23SMCV04542

MOTION:                  Motion to Set Aside Judgment

HEARING DATE:   11/13/2024

Legal Standard

Relief under Code of Civil Procedure section 473(b) is either discretionary or mandatory. A motion for mandatory relief must be made no more than six months after entry of judgment and be accompanied by an attorney’s sworn affidavit attesting to the attorney’s “mistake, inadvertence, surprise or neglect.” (CCP § 473(b).) The attorney affidavit of fault must contain a “straight forward admission of fault.” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) But it need not contain an explanation of the reasons for the attorney’s mistake, inadvertence surprise or neglect. (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438-441.) Relief must be granted “unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (Ibid.) If mandatory relief is granted, the court must “direct the attorney to pay reasonable compensatory legal fees and costs” to the opposing counsel or parties. (CCP § 473(b).)

Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) A motion for discretionary relief must be made “within a reasonable time but in no instance exceeding six months after the judgment, dismissal, order, or proceeding was taken.” (Id.) If discretionary relief is granted, the court may in its discretion order the moving party to pay the costs, including attorney fees, incurred in obtaining the default. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823; Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 118-119.) If the motion for discretionary relief is granted, the court may order the offending attorney to pay monetary sanctions up to $1,000 to opposing parties, or up to $1,000 to the State Bar Client Security Fund, or “[g]rant other relief as is appropriate.” (CCP § 473(c)(1)(A), (B), (C).)

A motion for relief under section 473(b) “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted. . ..” (CCP § 473(b).) However, this requirement is not jurisdictional; substantial compliance may suffice. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403 [finding substantial compliance where counsel offered proposed answer at motion hearing rather than serving it with moving papers].) 

Analysis

Defendant Ross Helford moves to set aside the default judgment “requested” by Plaintiff on November 6, 2023, which resulted from Defendant’s inadvertence, surprise, mistake, or excusable neglect. By this, the Court can only conclude that Defendant means default which was entered on November 6, 2023. No default judgment existed when this motion was made on June 24, 2024. Further, Defendant made this motion more than six months after entry of default and after actual notice of this action. Defendant had notice since at least November 9, 2023, when he filed a substitution of attorney. Defendant does not explain why he did not file a motion for relief from default within six months of actual notice of this action. Additionally, the motion is substantively defective because Defendant does not provide any evidence in support of his arguments. Defendant only supplies an unsigned declaration attesting to his mistake, which is of no evidentiary value.

Accordingly, the motion is DENIED.