Judge: Melvin D. Sandvig, Case: 22CHCV00675, Date: 2023-03-13 Tentative Ruling

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Case Number: 22CHCV00675    Hearing Date: March 13, 2023    Dept: F47

Dept. F47

Date: 3/10/23

Case #22CHCV00675

MOTION TO SET ASIDE DEFAULT & DEFAULT JUDGMENT

Motion filed on 12/27/22.

MOVING PARTY: Defendant Lite James

RESPONDING PARTY: Plaintiff Richard B. Sandak

NOTICE: ok

RELIEF REQUESTED: An order to set aside/vacate the default entered against Defendant Lite James on 10/18/22 and the default judgment entered on 11/15/22, and for leave to file an Answer and defend against the action. 

RULING: The motion is granted.  Defendant Lite James is ordered to separately file the Answer to the Complaint.

SUMMARY OF FACTS & PROCEDURAL HISTORY

On 8/23/22, Plaintiff Richard B. Sandak (Plaintiff) filed this action against Defendant Lite James (Defendant) for: (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) promissory estoppel, (4) restitution, (5) fraud and deceit, and (5) constructive fraud, arising out of a written revocable living trust and its alleged assets, including a residence located at 20072 Shadow Island Drive, Santa Clarita, CA 91351 (the Property).

On 10/18/22, Plaintiff’s Request for Entry of Default was entered and on 11/15/22 Default Judgment was entered against Defendant.

On 12/27/22, Defendant filed and served the instant motion seeking an order setting aside/vacating the default entered against Defendant on 10/18/22 and the default judgment entered on 11/15/22, and for leave to file an Answer and defend against the action.  Plaintiff has opposed the motion and Defendant has filed a reply to the opposition. 

ANALYSIS 

Plaintiff’s Request for Judicial Notice is granted.

Defendant’s objections to Plaintiff’s Request for Judicial Notice, the declaration of Andrew Jay Kulick and the declaration of Richard Sandak are overruled. 

Defendant makes this motion pursuant to CCP 473(b) on the ground that the default and default judgment were entered as a result of Defendant’s mistake, inadvertence, surprise, or excusable neglect and the Court’s inherent, equitable power to set aside the judgment on the ground of extrinsic fraud or mistake caused by the conduct of Plaintiff and his attorney.  (See Motion, p.2:4-11).

Defendant contends that she failed to file an answer to the complaint in this action because she believed the matter had settled and this action would be dismissed based on communications she had with Plaintiff and the execution of a Request for Dismissal by Plaintiff’s attorney, which was never filed.  (See James Decl.).  Defendant contends that she did not receive notice of the Request for Entry of Default before it was filed.  (James Decl.).  Both James and her attorney further contend that they were not notified that a Request for Default Judgment would be filed.  (See James Decl.; Forry Decl.).  Thereafter, Plaintiff’s counsel refused to file the Request for Dismissal or enter a stipulation to set aside the default and default judgment.  (Forry Decl.).

Plaintiff contends that Defendant failed to comply with all of the requirements of the settlement and knew the matter had not settled based on Defendant’s filing of a small claims action, after the purported settlement, based on the same facts and circumstances as the instant case.  (See Sandak Decl.; Kulick Decl.; RJN).  Further, Plaintiff contends that Defendant’s counsel should have been aware that Plaintiff would proceed with requesting the entry of default judgment based on the communications between counsel.  (See Kulick Decl.).

In reply, Defendant contends that she was not aware of other conditions of the settlement before receipt of the opposition to this motion and that she filed the small claims action, while she was representing herself, because she believed that Plaintiff was refusing to abide by the settlement because the dismissal of this action had not been filed.  (See James Reply Decl.).  Additionally, the small claims action has since been dismissed.  (RJN, Ex.3; James Reply Decl.).

Based on the evidence presented by Defendant and Plaintiff, it appears that there was confusion regarding whether the action had settled, who had failed to comply with their obligations under the settlement and/or whether Plaintiff would proceed with requesting default judgment.  Given the foregoing and the strong policy of having actions resolved on their merits, the Court finds sufficient grounds to set aside/vacate the default and default judgment entered against Defendant based on Defendant’s mistake, inadvertence, surprise and/or excusable neglect.  CCP 473(b); See Lasalle (2019) 36 CA5th 127, 134; Rappleyea (1994) 8 C4th 975, 980.

Plaintiff’s claim that Defendant should have filed a motion to enforce settlement under CCP 664.6, rather than a proposed answer is without merit.  Such a motion is only appropriate if a settlement was made orally before the court or in writing signed by the parties outside the presence of the court.  CCP 664.6(a).  It does not appear that either of the foregoing conditions exist here. 

CONCLUSION

Based on the foregoing, the motion is granted.  Defendant is ordered to separately file her answer which is attached as Ex.P to the declaration of Craig B. Forry.