Judge: Michael P. Linfield, Case: 22STCV17303, Date: 2023-04-24 Tentative Ruling

Case Number: 22STCV17303    Hearing Date: April 24, 2023    Dept: 34

SUBJECT:         Motion to Set Aside Default and for Leave to Defend Action

Moving Party:  Defendant TMV Enterprises LLC

Resp. Party:    Plaintiff United Broadway, LLC

TENTATIVE RULING:

Defendant TMV Enterprises LLC’s Motion to Set Aside Default and for Leave to Defend Action is DENIED.

BACKGROUND:

On May 25, 2022, Plaintiff United Broadway, LLC filed its Verified Complaint against Defendants TMV Enterprises LLC, Michael Hajek, Tal Hajek, and Michael Vincent Academy, Inc. on causes of action arising from Defendants’ tenancy with Plaintiff.

On July 12, 2022, Defendants Michael Hajek, Tal Hajek, and Michael Vincent Academy, Inc. filed their Verified Answer.

On August 11, 2022, by request of Plaintiff, the Clerk’s Office entered default on Defendant TMV Enterprises, LLC.

On September 19, 2022, Plaintiff amended its Verified Complaint to substitute Doe 1 with Michael & Tal Vincent Enterprises, LLC. This defendant is listed as a Nevada limited liability company.

On September 20, 2022, Plaintiff amended its Verified Complaint to substitute Doe 2 with Michael & Tal Vincent Enterprises, LLC. This defendant is listed as a California limited liability company.

On December 2, 2022, Defendants/Cross-Complainants TMV Enterprises, Inc., Michael Hajek, Tally Hajek, and Michael Vincent Academy, Inc. filed their Cross-Complaint against Plaintiff/Cross-Defendant United Broadway, LLC on causes of action of: (1) violation of the County of Los Angeles Tenant Protections Resolution; and (2) set off and offset.

On March 20, 2023, the Court sustained in its entirety Plaintiff/Cross-Defendant’s Demurrer to the Cross-Complaint on the grounds of timeliness. The Court also declined to grant leave to file the Cross-Complaint unless and until TMV Enterprises, LLC’s default is set aside or vacated.

On March 22, 2023, Defendant TMV Enterprises LLC filed its Motion to Set Aside Default and for Leave to Defendant Action (“Motion”).

On April 11, 2023, Plaintiff filed its Opposition to the Motion. Plaintiff concurrently filed: (1) Declaration of H. Joseph Nourmand; (2) Declaration of Maurice Wainer; (3) Request for Judicial Notice; and (4) Proof of Service.

No reply or other response to the Motion has been filed.

ANALYSIS:

I.           Request for Judicial Notice 

Plaintiff requests that the Court take judicial notice of the following items:

(1)       Standard Industrial/Commercial Single-Tenant Lease, dated March 13, 2014;

(2)       Guaranty of Lease, dated March 13, 2014;

(3)       AIR Commercial Real Estate Association Standard Industrial/Commercial Single-Tenant Lease — Gross, dated September 12, 2016;

(4)       Verified Complaint, filed in this matter on May 25, 2022;

(5)       Proof of Service of Summons Re: TMV Enterprises LLC, a Nevada LLC;

(6)       Proof of Service of Summons Re: Michael Vincent Academy, Inc., a California corporation;

(7)       Proof of Service of Summons Re: Defendant Michael Hajek;

(8)       Proof of Service of Summons Re: Defendant Tal Hajek;

(9)       Request for Entry of Default Re: TMV Enterprises; and

(10)    Notice of Errata filed by Cross-Complainants.

The Court DENIES as irrelevant judicial notice to the first three items. “Although a court may judicially notice a variety of matters (Evid. Code, §¿450 et seq.), only relevant material may be noticed” (Am. Cemwood Corp. v. Am. Home Assurance Co. (2001) 87 Cal.App.4th 431, 441, fn. 7.)

The Court DENIES as superfluous judicial notice to the last seven items. Any party that wishes to draw the Court’s attention to a matter filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).) 

II.        Legal Standard 

“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. . . . No affidavit or declaration of merits shall be required of the moving party. 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. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.” (Code Civ. Proc., § 473, subd. (b).)

III.     Discussion

Pursuant to Code of Civil Procedure section 473, subdivision (b), Defendant TMV Enterprises, LLC (“Defendant”) moves the Court to: (1) set aside the default entered against it; and (2) grant Defendant leave to defend itself in the instant litigation, including by filing its proposed Answer and its proposed Cross-Complaint. (Motion, p. 7:2–6.)

Plaintiff opposes the Motion, arguing, among other things, that the Court is without jurisdiction to now relieve Defendant from the default entered pursuant to Code of Civil Procedure section 473, subdivision (b) because more than six months have passed since the entry of the default. (Opposition, pp. 5:25–28, 6:1–8.)

Defendant has not submitted a reply or otherwise addressed this argument.

The Clerk’s Office entered default on August 11, 2022. The Motion was filed on March 22, 2023. More than six months passed between the entry of default and the filing of the request to set aside or vacate default. Thus, Plaintiff is correct — the Court lacks jurisdiction to act here pursuant to Code of Civil Procedure section 473, subdivision (b).

The Court DENIES Defendant’s Motion.

IV.       Conclusion

Defendant TMV Enterprises LLC’s Motion to Set Aside Default and for Leave to Defend Action is DENIED.