Judge: Mark C. Kim, Case: 22LBCV00043, Date: 2022-09-13 Tentative Ruling
Case Number: 22LBCV00043 Hearing Date: September 13, 2022 Dept: S27
Plaintiffs, Milan V. Balejka and
Maria Riza Balejka filed this action against Defendants, Theresa Hertzog, Kiat
Chan, and all persons claiming right, etc., to the subject property. Plaintiffs filed the action on 1/26/22. The complaint includes causes of action for
quiet title, fraud, negligent misrepresentation, and cancellation of
instruments.
On 2/03/22, Plaintiffs filed proof
of service of the summons and complaint on Defendants. On 6/27/22, the Clerk, at Plaintiffs’
request, entered Defendants’ defaults. On
7/01/22, Defendants filed this motion. On
7/06/22, the Court held a CMC; the Court rescheduled the hearing on Defendants’
motion to vacate default to 9/13/22.
Defendant gave notice of the new hearing date the next day.
a.
Relief Sought
Defendants seek an order vacating
their defaults. Defendants contend there
were ongoing settlement conversations with Plaintiffs, and Plaintiffs had
granted them an open-ended extension of time to respond without default. Defendants contend Plaintiffs had promised to
give them twenty days’ notice before having their defaults entered, but failed
to do so.
b. Law
Governing Relief Requested
The court has broad discretion to
vacate the entry of default, default judgment or a dismissal, but that
discretion can be exercised only if the defendant establishes a proper ground
for relief, by the proper procedure and within the set time limits. Pursuant to CCP §473(b), a motion to set
aside/vacate cannot be brought more than 6 months after the entry of default
and must be made within a “reasonable time” if discretionary relief is sought.
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 of fault attesting to his/her
mistake, inadvertence, surprise or neglect, the court “shall” vacate the
resulting default, default judgment or dismissal. CCP §473(b). The only limitation is that the court may
deny relief if it finds that the default, default judgment or dismissal was not
in fact caused by the attorney’s mistake, inadvertence, surprise or neglect,
but that the attorney is attempting to “cover up” for his/her client. Rogalski
v. Nabers Cadillac (1992) 11 Cal.App.4th 816.
c. Analysis
Defendants met their moving burden,
through the declaration of their attorney, Peter T. Haven, Esq., to show that
they reasonably believed Plaintiffs would not take their default without notice
in light of representations made during ongoing settlement discussions. Any opposition to the motion was due on or
before 8/30/22. In light of the lack of
timely opposition, the motion is granted.
Defendants are ordered to file a separate
copy of their demurrer and motion to strike within ten days. The Court notes that Defendants have already
secured a 10/25/22 hearing date for the pleading challenges. The Court asks Counsel to meet and confer
prior to the hearing on the demurrer/MTS in an attempt to avoid the need for a
hearing on the matter.
The parties are reminded that there
is a CMC on calendar today concurrently with the hearing on the above
motion. Counsel are asked to make
arrangements to appear remotely at the CMC and hearing on the motion.