Judge Mark A. Young, Case Number: 23STCV25071, Date: 2024-03-27 Tentative Ruling

Judge: Mark A. Young, Case: 23STCV25071, Date: 2024-03-27 Tentative Ruling

Case Number: 23STCV25071 Hearing Date: March 27, 2024 Dept: M

CASE NO.: 23STCV25071

MOTION: Motion to Vacate Default/Default Judgment

HEARING DATE: 3/27/2024

Legal Standard

Relief under Code of Civil Procedure section 473(b) is either discretionary or mandatory. 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

Defendants Todd Krauss and A. George Glasco separately move to vacate the defaults taken against them. They have also filed demurrers as their proposed pleading. Both Defendants argue that they mistakenly did not file a responsive pleading because they believed, in good faith, that Judge Epstein imposed a stay on November 20, 2023.

Indeed, on November 20, 2023, the court held a case management conference and OSC re: failure to file proof of service. Then, the court held cases 23SMCV02140, 23SMCV02142, and 23STCV25071 were related and were to be re-assigned to Dept. I. The court also issued minute orders staying each case in its entirety to allow for peremptory challenges. The court ordered that the stay would “naturally expire on the next hearing date” but otherwise did not specify a which hearing date. The Court then scheduled a Case Management Conference hearing for December 11, 2023, which was ultimately not held until February 2, 2024.

On November 29, 2023, the Court granted Plaintiff’s peremptory challenge in 23STCV2571. The Court did not address the stay until later issuing a nunc pro tunc order that same day, adding that "The stay previously imposed on 11/20/2023 is hereby lifted in its entirety." Plaintiff was ordered to give notice of the November 29, 2023, orders to the other parties in the action. No proof of service was filed. In his opposition, Plaintiff does not present a proof of service of this order.

Plaintiff argues that Defendants were provided notice that on November 29, 2023, the court issued orders “lifting the stay in its entirety.” Plaintiff proffers his counsel’s declaration stating that “[t]here is no evidence in the record that Hunter gave notice to Krauss or Glasco of the November 29 minute order or nunc pro tunc order in the Krauss/Glasco case.” (Fletcher Decl., ¶ 9.) Indeed, counsel only served Krauss, Glasco, and Hunter with the minute orders issued in the Fino (23SMCV02142) and Burris (23SMCV02140) cases. (Id., Ex. 9.) The attached minute orders were only issued in those specific cases. At the bottom of each of the attached minute orders, the court indeed ordered that the “stay previously imposed on 11/20/2023 is hereby lifted in its entirety.” However, there is no record of service of the relevant order in this matter (23STCV25071).

In light of the totality of the record, Defendants have demonstrated their reasonable “mistake, inadvertence, surprise, or excusable neglect” by relying on the stay of the entire action through the date of default. Plaintiff does not demonstrate that Defendants actually knew or had reasonable notice that the stay was lifted as to this action. Plaintiff only demonstrates that Defendants had notice that the stay was lifted as to the related matters. As the initial order and nunc pro tunc order in this action were never served, Defendants’ confusion on the existence of the stay as to this action would be reasonable. Per the stay’s own terms, it was set to expire on the “next hearing date.” However, the next hearing date was not held until the February 2, 2023, Case Management Conference.

Accordingly, the motions are GRANTED. Currently, Defendant Glasco’s demurrer is set for January 14, 2025. There is also a demurrer reservation for August 21, 2024. Furthermore, Defendant Krauss did not attach a proposed demurrer pleading or file his demurrer along with his motion to set aside the default, although the body of the motion indicates that was the intent. As a result, the Court will advance Defendant Glasco’s demurrer to August 21, 2024, and at the same time, hear Defendant Krauss’ demurrer. The Court further orders Defendant Krauss to file his demurrer by March 29, 2024.