Judge: Mark C. Kim, Case: 22LBCV00184, Date: 2023-02-16 Tentative Ruling

Case Number: 22LBCV00184    Hearing Date: February 16, 2023    Dept: S27

1.     Background Facts

Plaintiff, Stephanie Fonseca filed this action against Defendant, Michael Torres for quiet title.  The crux of her complaint is that the two parties were divorced in 2012, and pursuant to the parties’ settlement agreement, Plaintiff was awarded the subject property.  Plaintiff was subsequently approved to refinance the property and remove Defendant from the mortgage note, but the title company required Defendant to sign an uninsured deed affidavit and statement of information acknowledging he no longer had an interest in the property, and he refused to do so. 

Plaintiff filed her complaint on 4/21/22.  She filed proof of service of the summons and complaint on Defendant on 5/04/22, and the Clerk, at Plaintiff’s request, entered Defendant’s default on 6/20/22.      

2.     Motion to Vacate Default

a.     Parties’ Positions

Defendant moves to vacate the default entered against him, contending he thought he signed all papers necessary to resolve this matter in June and did not think the litigation would remain pending against him.  He also contends he has MS, which means it takes longer for him to handle important matters, and he contracted “Covid-22” and became very ill around the time his answer was due. 

Plaintiff opposes the motion.  She argues it is not timely.  She argues she incurred damages as a result of Defendant’s failure to send in the papers he agreed to sign, and she served a statement of damages seeking to recover those damages, which she wishes to recover by way of default judgment.  She contends Defendant’s failure to respond was not excusable, especially because he was represented by an attorney, who at all times was in communication with Plaintiff’s attorney. 

b.     Analysis

Both the motion, the opposition, and the general case posture suffer from various defects, which the Court will detail below.

The motion is defective.  It seeks relief under CCP §473(b), contending default was entered as a result of Defendant’s mistake, surprise, inadvertence, and/or excusable neglect.  Defendant concedes, however, that he was represented by an attorney at the time his answer was due.  Indeed, Plaintiff shows her attorney and Defendant’s attorney had extensive communications, and therefore any failure to answer was due to Defense Counsel’s neglect, not Defendant’s personal neglect.  Additionally, default was entered on 6/20/22, but Defendant filed this motion on 1/19/23, more than six months later and in violation of CCP §473(b)’s time limit.

The opposition is also defective.  It consistently refers to CCP §473.5, but the motion is not based on §473.5. 

Most importantly, however, the actual request for default judgment suffers from a fatal defect.  Plaintiff’s complaint does NOT seek to recover damages.  Plaintiff incurred all of her claimed damages AFTER she filed her complaint.  Specifically, Plaintiff wanted to refinance at some point prior to filing this action, but ultimately was not able to refinance until 7/23/22, after she filed this action, which caused her interest rate to increase by 2.625%.  Plaintiff, at some point thereafter, served Defendant with a statement of damages, pursuant to which she seeks to recover $100,000 in special damages.  She now seeks entry of judgment for quiet title and in the amount of $100,000.

Again, Plaintiff’s complaint did not seek damages.  The Court is aware of no authority permitting the failure to claim damages in a complaint to be cured by way of a statement of damages.  A statement of damages serves the purpose of giving notice of the AMOUNT of damages, not of the fact that damages are being claimed. 

The motion is denied because it is not timely.  No sanctions are imposed because sanctions are only permitted by Code when the motion is granted; additionally, the request for sanctions is made per §473.5(c), but §473(c) is the controlling section. 

3.     OSC re: Default Judgment

The Court also has an OSC re: entry of default judgment on calendar today.  The Court will give Plaintiff two choices at the time of the OSC.  She can either accept a judgment for quiet title only, and the action will be over, or she can agree to file an amended complaint, seeking damages, in which case the default will be vacated and Defendant will have the opportunity to respond to the amended complaint. 

The Court asks Counsel to make arrangements to appear remotely at the hearing on the motion and OSC.