Judge Michael E. Whitaker, Case Number: 22SMCV01705, Date: 2023-10-18 Tentative Ruling

Judge: Michael E. Whitaker, Case: 22SMCV01705, Date: 2023-10-18 Tentative Ruling

On September 29, 2022, Plaintiff West LA Enclave Commonwealth, LLC (“Plaintiff”) filed a verified unlawful detainer complaint against Defendants EVM US, LLC (“EVM”); and Manfred Mauricio Quintanilla Hernandez (“Hernandez”) (collectively, “Defendants”).

Plaintiff requested entry of a default and default judgment against Hernandez in the amount of $465,090, which is composed of past due rent in the amount of $134,575; holdover damages in the amount of $321,448.20; costs in the amount of $2,616.55; and attorneys’ fees in the amount of $6,450.24. Plaintiff also requested entry of a default judgment against EVM that the rental agreement is canceled and the lease is forfeited, but Plaintiff did not seek monetary damages against EVM.

The Proof of Service indicates Defendants EVM and Hernandez were personally served at Hernandez’s home on Kimridge Road in Beverly Hills. As such, default was entered as to both EVM and Hernandez on November 8, 2022. Default Judgment has been entered as to EVM only

Hernandez now moved to set aside the entry of default. Plaintiff opposes the motion. No reply was filed.

Per Code of Civil Procedure section 473, subdivision (b), a court may “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.”

Code of Civil procedure section 473 “includes a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25 (hereafter Minick).) [1] “Section 473 is a remedial statute to be “applied liberally” in favor of relief if the opposing party will not suffer prejudice. Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.” (Minick, supra, 3 Cal.App.5th at p. 24 [cleaned up].)

The party or the legal representative must seek such relief “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); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4^th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]). “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.)

Hernandez moves to set aside the default on the following bases: (1) neither Hernandez nor his staff had notice of the Three-Day Notice to Pay Rent or Quit that was posted to the property; (2) service of the summons and complaint was improper; (3) mandatory language was missing from the three-day notice to pay rent or quit; and (4) “the three-day notice is indiscernible as to the balance owed.”

In Opposition, in addition to addressing Hernandez’s arguments, Plaintiff also contends that the Motion to Set Aside/Vacate is untimely, because it is brought more than six months after default was entered on November 8, 2022, and Hernandez did not serve the motion on Plaintiff the requisite 16 court days prior to the hearing.

Default was first entered against Hernandez and EVM on November 8, 2022. Pursuant to Code Civ. Proc. Section 473, a motion to set aside or vacate must be brought within six months. Six months following November 8, 2022, is May 8, 2022. Hernandez did not file or serve his motion until September 27, 2023. Therefore, the Court finds Hernandez’s motion is untimely.

Even if Hernandez were able to somehow overcome the statutory time requirements, Hernandez has not provided a valid basis to vacate or set aside the entry of default.

Hernandez first argues that neither he nor his staff were given notice of the Three-Day Notice to Pay Rent or Quit that was supposedly posted to the property. In opposition, Plaintiff has provided evidence indicating that on October 18, 2022, both Hernandez and Hernandez’s personal assistant, Alex Jellison, sent separate emails to Plaintiff regarding payment on the property. Hernandez’s email referenced “the Eviction Notice” and Jellison’s email was sent “as a response to the notice to pay rent or quit[.]” (Opp. at p. 3; Cabello Decl. ¶ 3 and Exs. B & C thereto.) Hernandez has not filed a reply brief or otherwise challenged this evidence.

Hernandez next contends that it is “not possible” that Hernandez was personally served at his home, as the proof of service indicates, because (1) Hernandez resides in a gated community, “making it practically impossible for an outsider to gain access to the property” and (2) “[e]ven if the process server had somehow reached [Hernandez’s] front door,” Hernandez’s personal assistant would have been the one who answered the door. (Motion to Set Aside Default at p. 3.)

In opposition, Plaintiff has provided photographic evidence of the process server personally serving Hernandez at Hernandez’s residence. (Opp. at p. 3; Sherman Decl. ¶ 5 and Ex. 3 thereto.) Hernandez has not filed a reply brief, or otherwise contested the authenticity of the photograph.

Hernandez contends the three-day notice is faulty because it indicates Defendants have three “business days” to pay rent, whereas the statute requires “three days’ notice, excluding Saturdays and Sundays and other judicial holidays[.]” A careful reading of the statute indicates otherwise.

The statute does not require that the language “three days’ notice, excluding Saturdays and Sundays and other judicial holidays” appear in the notice. Rather, the statute requires that the notice be given to the defendant in writing at least three days in advance of eviction proceedings, and those three days exclude Saturdays, Sundays, and other judicial holidays. The statute requires only that the notice state, “the amount that is due, the name, telephone number, and address of the person to whom the rent payment shall be made” and instructions for when and how to pay. (Code Civ. Proc., § 1161(2); Lee v. Kotyluk (2021) 59 Cal.App.5th 719, 730.)

In any event, there were no judicial holidays impacting the three-day timeframe. The 3-day Notice was posted and mailed on Wednesday, September 14, 2022. Three business days later was Monday, September 19, 2022. Native American Day was not until September 23, 2022.

Hernandez’s final argument is that the Three-Day Notice was invalid because it was “indiscernable” as to the balance owed. In support, Hernandez points out that the balance listed on the Three-Day Notice was $332,409.86, whereas the Complaint seeks only $289,158.97. (Motion at p. 6.)

In Opposition, Plaintiff indicated that at the time the three-day notice was served on September 14, 2022, Defendant owed $332,409.86. (Sherman Decl. ¶ 2, and Ex. 1 thereto.) On September 20, 2022, Defendant made a partial payment of $43,250.89. (Cabello Decl. ¶ 2.) Therefore, the Complaint filed on September 29, 2022, reduced the amount originally demanded by the partial payment amount, and sought only the balance of $239,158.97. Thus, the Notice is not inadequate because the balance is higher than that reflected in the Complaint.

Therefore, Hernandez has not demonstrated any basis to set aside or vacate the entry of default.[2]

Based upon the record, the Court finds that Hernadez’s motion is untimely and has not set forth a factual basis for relief under Code of Civil Procedure section 473 due to mistake, inadvertence, surprise, or excusable neglect. Accordingly, the Court denies Hernandez’s motion to set aside the entry of default.

[1] “Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect .” (Code Civ. Proc., § 473, subd. (b).) Here, the Court finds that the mandatory provisions of Section 473 do not apply as no attorney affidavit of fault was submitted with the moving papers. Therefore, the Court will consider the motion under the discretionary provisions of Section 473 only.

[2] Because the Court finds these issues dispositive, it does not address Plaintiff’s argument that the Motion was filed and served one day late.