Judge: Mark A. Young, Case: 24SMCV04803, Date: 2025-01-24 Tentative Ruling

Case Number: 24SMCV04803    Hearing Date: January 24, 2025    Dept: M

CASE NAME:           Lebow v. Cusick-Bertram, et al.

CASE NO.:                24SMCV04803

MOTION:                  Motion to Vacate Default/Default Judgment, Recall Writ of Possession

HEARING DATE:   1/24/2025

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].) 

The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order. (CCP §473(d).)

Analysis

Defendants Brooke E. Cusick-Bertram, George Michael L. Cusick, and Christine V. Cusick move for relief from default, default judgment, and the writ of possession issued in this action. Defendants demonstrate that the default and resulting judgment should be vacated. Default was taken against Defendants without the notice of the Court’s order to answer. On December 16, 2024, the court granted Plaintiff’s ex parte application advancing Defendants’ demurrer to the complaint and overruling the demurrer. The Court also ordered Defendants to file and serve an answer within 5 days, and for Plaintiff to give notice of this ruling. Default therefore could not be taken until at least five days after service, depending on the method of service. Plaintiff did not file proof of service of this notice at any point. In opposition to this motion, Plaintiff does not provide proof of service of the underlying order overruling the demurrer. The record therefore reflects that Defendants did not have notice of the ex parte order to answer. Accordingly, the default taken on December 26, 2024, was void.

Plaintiff notes that the recent fires have completely destroyed the Premises. Even if possession in this UD action is ultimately “moot,” the Court does not find that this would justify the void judgment against Defendants.

Accordingly, the motion is GRANTED. Defendants are ordered to answer within 5 days.