Judge Matthew C. Braner, Case 37-2023-00047376-CU-UD-CTL 2024-03-29 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2023-00047376-CU-UD-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 28, 2024

03/29/2024 09:02:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited Unlawful Detainer - Commercial Motion Hearing (Civil) 37-2023-00047376-CU-UD-CTL AYALA VS SCOFIELD [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Kenneth Scofield's motion to set aside default is CONTINUED to April 12, 2024 at 9:00 a.m.

in this department.

The discretionary relief portion of Code of Civil Procedure section 473, subdivision (b), states: The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

(Code Civ. Proc., § 473, subd. (b).) 'The law favors judgments based on the merits, not procedural missteps. Our Supreme Court has repeatedly reminded us that in this area doubts must be resolved in favor of relief.' (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134-35.) Where there is no real prejudice to the plaintiff, 'the rule is that a party's negligence in allowing a default to be taken in the first place will be excused on a weak showing.' (Id. at p. 140.) Here, Defendant Scofield attests he was not served with an unlawful detainer complaint, but did receive Plaintiff's request for entry of default, which she filed on December 12, 2023. He further attests he has received a variety of documents in the various cases related to this one, and cannot find the copy of the summons and complaint purportedly served on him by Reginald Cole, who is not a registered process server. Defendant emphasizes the discrepancy between the proof of service of summons filed on November 9, 2023, in which Mr. Cole declared only a summons was served on Defendant (ROA #10) and the 'amended' proof of service Plaintiff filed on December 12, 2023 (the same day she filed a request for entry of default), by which Mr. Cole now declares he also personally served the complaint, civil case cover sheet, and 3-day notice to vacate on Defendant. (ROA #10.) Based on the record before it, the court concludes Defendant's failure to respond to the complaint was the result of mistake, inadvertence, or excusable neglect. The court is not persuaded by Plaintiff's argument that Defendant's lack of response was a calculated litigation tactic, nor by her accusation of gamesmanship on the part of Defendant's counsel. Plaintiff repeatedly emphasizes the November 20, 2023 hearing in connection with the civil harassment restraining orders, by which Defendant and his counsel were given notice of this unlawful detainer action due to attorney Griffin's arguments. But by the same token, attorney Griffin knew Defendant was represented by counsel, and arguably had an ethical Calendar No.: Event ID: TENTATIVE RULINGS

3109348 32 CASE NUMBER: CASE TITLE: AYALA VS SCOFIELD [IMAGED] 37-2023-00047376-CU-UD-CTL obligation to inform attorney Lieb of Plaintiff's intent to enter default against Defendant. (Lasalle v. Vogel, supra, 36 Cal.App.5th at p. 135.) The speed with which Defendant sought relief from the default (the moving papers were filed on December 20, 2023) further supports the conclusion the default was the result of mistake, inadvertence, or excusable neglect.

However, the court cannot grant Defendant's motion unless it is 'accompanied by a copy of the answer or other pleading proposed to be filed therein,' and it does not appear Defendant has provided a copy of his proposed answer. The court believes this technical deficiency is easily curable. As such, the hearing on Defendant's motion will be continued.

Defendant is instructed to submit a proposed answer no later than April 5, 2024.

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3109348 32