Judge: Mel Red Recana, Case: 19STCV44936, Date: 2024-09-24 Tentative Ruling
All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.
Case Number: 19STCV44936 Hearing Date: September 24, 2024 Dept: 45
Hearing Date: September 24, 2024
Moving Party: Defendant Consuelo Maria Montenegro
Responding Party: Plaintiffs The Estate of Maria Montenegro; Maria Montenegro-Skinner; and Mikahela Chaidez-Skinner
Motion: Motion to Set Aside Judgment
Tentative Ruling: The Court considered the moving papers, opposition, and reply. The motion is DENIED.
Background
On December 16, 2019, Margarita Montenegro-Skinner, in her individual capacity and her capacity as the successor-in-interest of Maria Montenegro and Mikahela Chaidez-Skinner (collectively, Plaintiffs), filed a Complaint against Consuelo Maria Montenegro (Defendant). The Complaint alleged nine separate causes of action against Defendant surrounding the treatment of Maria Montenegro (Maria or Decedent) prior to Maria’s death in July of 2019. The Complaint alleges the family home located at 4374 Yellowstone St., Los Angeles, CA 90038 (the Family Home) was in a trust titled the “Montenegro Trust” (the Trust) until 2010 when Maria wanted to refinance the Family Home. (Compl., ¶¶7 and 11.) At the time, the Family Home was occupied by Maria, her daughter Margarita, Margarita’s husband Wayne Skinner (Wayne), and Margarita’s daughter Mikahela, along with two grandchildren. (Compl., ¶9.)
Because Maria needed to use Defendant’s credit to obtain the loan, Defendant agreed telling Maria the Family Home needed one-half of the ownership interest in the Family Home needed to be retitled to Defendant. In order for this to happen the Family Home needed to be removed from the Trust, however, when it was, Margarita alleges Consuelo never re-deeded it back to the Trust. (Compl., ¶¶11-12.) Margarita filed suit.
On October 15, 2019, Defendant, both individually and as the successor in interest of Maria Montenegro filed a Cross-Complaint against Margarita Montenegro-Skinner both individually and as the care custodian of Maria Montenegro, alleging (1) Undue Influence, (2) Financial Elder Abuse, (3) Fraud, (4) Intentional Infliction of Emotional Distress, (5) Negligent Infliction of Emotional Distress, and (6) Quiet Title.
The motion now before the Court is Defendant’s Motion to Set Aside Judgement. Plaintiffs oppose the Motion; Defendant files a reply.
Discussion
Legal Standard
“Section 473.5, subdivision (c) allows the court to set aside the default judgment if it finds the defendant's lack of actual notice in time to defend was not caused by the defendant's avoidance of service or inexcusable neglect.” (Ellard v. Conway (2001) 94 Cal. App. 4th 540, 547.) “Section 473.5 requires that the motion to set aside the default judgment be accompanied by ‘an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect’ and ‘a copy of the answer, motion, or other pleading proposed to be filed in the action.’” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 861.)
Code Civ. Proc. §473(b) provides “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.”
Analysis
On February 20, 2024, the Court held a non-jury trial hearing on the case where Defendant did not appear. A judgment against Defendant subsequently followed on March 11, 2024. In their moving papers, Defendant indicates the reason she did not attend the February 20, 2024 hearing was because she informed Plaintiff’s attorney she would not be available on that date and assumed the date would be rescheduled. (Moving Papers, 5:9-15.) Plaintiff indicates she resides in Mexico, and it takes two days travel to arrive in Los Angeles. (Id. at 4:1-5.) However, Plaintiffs point out, and Defendant concedes, that she received notice of the February 20, 2024 hearing on January 22, 2024, 29 days before the hearing. Upon reply, Defendant is silent as to this point. The Declaration of Consuelo Maria Montenegro attached to the reply states that Defendant lives “in Mexico, and last-minute travel to Los Angeles, California is exceedingly difficult for me.” (Declaration of Consuelo Maria Montenegro, ¶2.) However, notice was received 29 days prior to the hearing. Defendant fails to clarify how traveling to the hearing was a “last-minute” arrangement, or how this constitutes her mistake, inadvertence, surprise, or excusable neglect.
Conclusion
Accordingly, Defendant’s Motion to Set Aside Judgement is DENIED.
It is so ordered.
Dated: September 24, 2024
_______________________
MEL RED RECANA
Judge of the Superior Court