Judge Mark E. Windham, Case 22STLC02975 2022-09-12 Tentative Ruling

Judge: Mark E. Windham, Case: 22STLC02975, Date: 2022-09-12 Tentative Ruling

Case Number: 22STLC02975 Hearing Date: September 12, 2022 Dept: 26

MOTION TO VACATE ENTRY OF DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Michael Ramirez’s Motion to Vacate Entry of Default is GRANTED. THE DEFAULT ENTERED ON JUNE 7, 2022 IS HEREBY VACATED. DEFENDANT IS TO FILE AND SERVE THE ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

PLAINTIFF’S COUNSEL OF RECORD IS ORDERED TO APPEAR AT THE HEARING ON SEPTEMBER 12, 2022 TO EXPLAIN THE RELATIONSHIP BETWEEN THIS ACTION AND LASC CASE NO. 22STLC02946.

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 16/21 Day Lapse (CCP 12c and 1005 (b)) OK

SUMMARY OF COMPLAINT: Action for recovery of COVID-19 rental debt.

RELIEF REQUESTED: Vacate entry of default due to Defendant’s excusable neglect and inadvertence in not answering the Complaint.

OPPOSITION: Defendant’s failure to answer was not excusable. The proposed Answer is also defective.

REPLY: None filed as of September 6, 2022.

ANALYSIS:

Plaintiff 511 S. Park View, Inc. (“Plaintiff”) filed the instant action for recovery of COVID-19 rental debt against Defendant Michael Ramirez (“Defendant”) on April 28, 2022. Following Defendant’s failure to file a responsive pleading, the Court entered default on June 7, 2022. Defendant filed the instant Motion to Vacate Default on August 16, 2022. Plaintiff filed an opposition on August 17, 2022.

Discussion

Defendant moves to vacate the entry of default pursuant to Code of Civil Procedure section 473, subdivision (b). Under this statute, an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) The motion must also be accompanied by a copy of the moving defendant’s proposed pleading. (Code Civ. Proc., § 473, subd. (b).) When based on an attorney affidavit of fault, the relief sought must be granted if the statutory requirements are satisfied. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) When brought pursuant to the provision for discretionary relief based on party fault, the request must have been filed within a reasonable amount of time.

The Motion was timely filed within six months of the entry of default and within a reasonable amount of time (two months after entry of default). Also, the Motion is accompanied by a copy of Defendant’s proposed Answer. (Motion, Randall Decl., Exh. B.) Finally, the Motion is accompanied by an affidavit demonstrating that the default was entered due to Defendant’s inadvertence or excusable neglect. Specifically, on May 9, 2022, Defendant reached out to Public Counsel, which previously represented him in an unlawful detainer case, about service of papers in this action. (Motion, Randall Decl., ¶¶4-5; Ramirez Decl., ¶¶8-9.) On May 19, 2022, Defendant’s former attorney informed him that they did not handle these types of cases and that Public Counsel was trying to locate pro bono counsel. (Motion, Randall Decl., ¶5; Ramirez Decl., ¶11.) It took several weeks for the pro bono placement process to be completed, during which time the attorney at Public Counsel was not able to give the matter their full attention. (Id. at Randall Decl., ¶¶6-8.) On June 8, 2022, Public Counsel was informed that Defendant did not qualify for pro bono assistance and sought an extension of the time to respond to the Complaint from Plaintiff’s counsel. (Id. at ¶¶9-10.) Plaintiff’s counsel advised that default had been entered on June 7, 2022 and would not stipulate to vacate the default. (Id. at ¶¶10-11.)

This evidence demonstrates that Plaintiff diligently sought to address the action upon service of the Summons and Complaint but missed the deadline while Public Counsel sought to locate an attorney. Defendant’s reliance on the assistance of former counsel was wholly reasonable given the ongoing process of locating pro bono counsel. Next, Plaintiff makes much of the fact that the proof of service indicates Defendant was served on May 6, 2022, but the Motion states service occured on May 9, 2022. This minor discrepancy does not suggest to the Court any issue with Defendant’s credibility that would create a basis to deny the Motion. “The law favors resolution of cases on their merits, and because it does, any doubts about whether Code of Civil Procedure section 473 relief should be granted “must be resolved in favor of the party seeking relief from default [citations].” (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 685.)

As to any challenge Plaintiff wishes to raise with respect to the propriety of Defendant’s proposed Answer, Plaintiff may file the appropriate motions after service and filing of the Answer.

Finally, the Court notes that Plaintiff filed a nearly identical action against Defendant on April 27, 2022. 511 S. Park View, Inc. v. Ramirez, et al., LASC Case No. 22STLC02946 also concerns rent allegedly owed to Plaintiff by Defendant, although it is styled as an action for “recovery of COVID-19 rental debt” pursuant to Code of Civil Procedure section 1179.02. (LASC Case No. 22STLC02946, Compl., p. 1.)

Conclusion

PLAINTIFF’S COUNSEL OF RECORD IS ORDERED TO APPEAR AT THE HEARING ON SEPTEMBER 12, 2022 TO EXPLAIN THE RELATIONSHIP BETWEEN THIS ACTION AND LASC CASE NO. 22STLC02946.

Court clerk to give notice.