Judge: Mark E. Windham, Case: 23STLC01615, Date: 2023-09-05 Tentative Ruling

Case Number: 23STLC01615    Hearing Date: September 5, 2023    Dept: 26

APB Properties, LLC v. Alas, et al.

MOTION TO VACATE JUDGMENT AND ENTER NEW JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff APB Properties, LLC’s Motion to Set Aside Judgment and Enter New and Different Judgment is GRANTED. JUDGMENT IS ENTERED AGAINST DEFENDANT JORGE MARTINEZ IN THE AMOUNT OF $22,050.00 PRINCIPAL, $592.03 PREJUDGMENT INTEREST, $778.00 ATTORNEY’S FEES, AND $597.50 COSTS. JUDGMENT IS ENTERED AGAINST DEFENDANT MARTA ALAS IN THE AMOUNT OF $11,100.00 PRINCIPAL, $343.52 INTEREST, 778.00 ATTORNEY’S FEES, AND $597.50 COSTS.

ANALYSIS:

On March 9, 2023, Plaintiff APB Properties, LLC (“Plaintiff”) filed the instant action against Defendants Jorge Martinez (“Defendant Martinez”) and Marta Alas (“Defendant Alas”). Following Defendants’ failure to file a responsive pleading, the Court entered default judgment against them on June 30, 2023 in the amount of $22,050.00 principal, $592.03 prejudgment interest, $778.00 attorney’s fees, and $597.50 costs. (Default Judgment, 06/30/23.)

Plaintiff filed the instant Motion to Set Aside Judgment and Enter New and Different Judgment on July 18, 2023. No opposition has been filed to date.  

Discussion

Plaintiff brings this motion 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 moving party’s mistake, inadvertence, surprise or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) When based on attorney fault with respect to entry of default, default judgment, or involuntary dismissal, a timely request for relief must be granted. (Code Civ. Proc., § 473, subd. (b).) 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 entry of judgment and is supported by an affidavit of fault. Plaintiff’s counsel was unaware that Defendant Alas filed for bankruptcy in August 2022 and had her debts discharged in November 2022. (Motion, Nussbaum Decl., ¶¶3-4 and Exhs. 1-2.) Upon learning this, Plaintiff’s counsel realized that the default judgment improperly includes debts discharged in the bankruptcy order, which are not owed or collectible, in the amount of $10,950.00. (Id. at ¶5.) This evidence demonstrates that the judgment entered on June 30, 2023 against Defendant Alas was due to Plaintiff’s counsel’s inadvertence in failing to realize a bankruptcy order existed with respect to certain rent owed to Plaintiff. The judgment entered against Defendant Alma on June 30, 2023 is vacated, and a new and different judgment is entered as follows: Judgment against Defendant Martinez in the amount of $22,050.00 principal, $592.03 prejudgment interest, $778.00 attorney’s fees, and $597.50 costs; and judgment against Defendant Alas in the amount of $11,100.00 principal, $343.52 interest, 778.00 attorney’s fees, and $597.50 costs.

Conclusion

Plaintiff APB Properties, LLC’s Motion to Set Aside Judgment and Enter New and Different Judgment is GRANTED. JUDGMENT IS ENTERED AGAINST DEFENDANT JORGE MARTINEZ IN THE AMOUNT OF $22,050.00 PRINCIPAL, $592.03 PREJUDGMENT INTEREST, $778.00 ATTORNEY’S FEES, AND $597.50 COSTS. JUDGMENT IS ENTERED AGAINST DEFENDANT MARTA ALAS IN THE AMOUNT OF $11,100.00 PRINCIPAL, $343.52 INTEREST, 778.00 ATTORNEY’S FEES, AND $597.50 COSTS.

Moving party to give notice.