Judge Michael E. Whitaker, Case Number: 24SMCV05523, Date: 2025-02-20 Tentative Ruling

Judge: Michael E. Whitaker, Case: 24SMCV05523, Date: 2025-02-20 Tentative Ruling

This case arises from a dispute concerning the habitability of leased residential premises alleged to be contaminated by water damage, asbestos and toxic mold.

On November 6, 2024, Plaintiff Siavash Kahen and Natash Amin (“Plaintiffs”) filed suit against Defendant Kiandokht Leyton (“Defendant”) alleging ten causes of action. Defendant was served with a copy of the summons and complaint by substitute service on December 3, 2024. Default was entered against Defendant on January 14, 2025.

On January 21, 2025, Defendant filed the instant motion to set aside the entry of default. Plaintiffs oppose the motion and Defendant replies.

“Proceeding to judgment in the absence of a party is an extraordinary and disfavored practice in Anglo–American jurisprudence: The policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.” (Au-Yang v. Barton (1999) 21 Cal.4th 958, 963 [cleaned up].)

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).) “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.)

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.”

“In considering whether the trial court properly denied relief under section 473(b), the first question is the sufficiency of defendants' showing of attorney fault, if believed, to trigger the mandatory relief provisions of that statute.” (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 896, disapproved on other grounds by Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830 (hereafter Standard).) “Under section 473(b), a party is entitled to relief from a default and resulting judgment whenever, on timely application for relief, his attorney ‘attest[s] to his or her mistake, inadvertence, surprise, or neglect’ in connection with the default or the judgment.” (Ibid.)

Here, the Court entered default against Defendant on January 14, and Defendant filed the instant motion a week later on January 21. Therefore, the Court finds the motion timely.

In support of the motion, Defendant has provided the Declaration of Kiandokht Leyton, which provides:

13. Sometime in mid-December 2024, I received the Complaint in this action via U.S. mail. I was never served with a Proof of Service for the Complaint to determine when I needed to respond to the Complaint. Accordingly, I called the Court and was informed on two occasions that Defendant was served by substitute service on December 17, 2024. My response was therefore due 40 days thereafter (January 27, 2025.)

14. After receiving the Complaint in the mail, I contacted my insurance carrier to request coverage regarding Plaintiffs’ Complaint. The insurance carrier was slow in responding and ultimately denied coverage in early January 2025, leaving me scrambling to respond to the Complaint.

15. On January 6, 2025, a massive wildfire broke out in the Pacific Palisades where several of my friends reside. I was actively working to locate and assist my friends during this terrible time and was not able to devote time to responding to the Complaint in this matter.

16. On January 17, 2025, I went to the Samta [sic] Monica Courthouse to file my Answer and Cross-Complaint. The clerk informed me they could not accept the Answer and Cross-Complaint because a default in the case had been entered. The clerk explained that the Proof of Service for the Complaint had been filed on December 17, 2023 [sic] with a service date of December 3, 2024, and that the Court was mistaken when they informed me by phone on two occasions that I was sub-served on December 17, 2024. I therefore had to file this Motion to Vacate Default.

Plaintiffs argue in opposition that Defendant’s motion should be denied because Defendant admits to having received proper service.

Here, Defendant has adequately demonstrated that the entry of default was due to Defendant’s inadvertence, mistake, surprise, and/or excusable neglect, due to confusion about the service date and subsequent responsive pleading deadline, the insurance company’s delay in responding to Defendant with a decision about coverage, and the understandable distraction the recent Palisades fire posed for Defendant.

Therefore, the Court grants Defendant’s motion and sets aside the default entered against Defendant on January 14, 2025. Further, the Court orders Defendant to file and serve a response to the Complaint on or before March 20, 2025.

Further, on the Court’s own motion, the Court continues the Case Management Conference from March 6, 2025 to June 3, 2025 at 8:30 A.M. in Department 207. All parties shall comply with California Rules of Court, rules 3.722, et seq., regarding Initial and Further Case Management Conferences. In particular, all parties shall adhere to the duty to meet and confer (Rule 3.724) and to the requirement to prepare and file Case Management Statements (Rule 3.725).

Plaintiffs shall provide notice of the Court’s orders and file the notice with a proof of service forthwith.

[1] “The judge cannot rely on the pro per litigants to know each of the procedural steps, to raise objections, to ask all the relevant questions of witnesses, and to otherwise protect their due process rights.” (Ross v. Figueroa (2006) 139 Cal.App.4th 856, 861.)

“[W]hen a litigant is self-represented, a judge has the discretion to take reasonable steps, appropriate under the circumstances and consistent with the law and the canons, to enable the litigant to be heard.” (See also ABA Model Code of Jud. Conduct, canon 2, rule 2.2, com. 4 [“[i]t is not a violation of this Rule [regarding impartiality and fairness] for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard”].) The canons and commentary thus provide a path to ensure a self-represented litigant can be fairly heard on the merits while the court maintains its impartiality and does not assume (or appear to assume) the role of advocate or partisan. (See Cal. Code Jud. Ethics, canon 3 [“a judge shall perform the duties of judicial office impartially, competently, and diligently”].)” (Holloway v. Quetel (2015) 242 Cal.App.4th 1425, 1434.)