Judge Michael P. Linfield, Case Number: 23STCV24378, Date: 2024-05-17 Tentative Ruling

Judge: Michael P. Linfield, Case: 23STCV24378, Date: 2024-05-17 Tentative Ruling

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Case Number: 23STCV24378 Hearing Date: May 17, 2024 Dept: 34

SUBJECT: Request for Default Judgment

Moving Party: Plaintiff Sunny and 80 LLC

Resp. Party: Defendant Group Atom Development Inc.

SUBJECT: Request for Default Judgment

Moving Party: Plaintiff Sunny and 80 LLC

Resp. Party: Defendant Jose Carlos Uribe

SUBJECT: Request for Default Judgment

Moving Party: Plaintiff Sunny and 80 LLC

Resp. Party: Defendant Miguel Uribe

SUBJECT: Request for Default Judgment

Moving Party: Plaintiff Sunny and 80 LLC

Resp. Party: Defendant Israel Jimenez Miron

SUBJECT: Request for Default Judgment

Moving Party: Plaintiff Sunny and 80 LLC

Resp. Party: Defendant Jose Miguel Salisone Rosas

SUBJECT: Motion to Set Aside Default

Moving Party: Defendant Group Atom Development Inc.

Resp. Party: Plaintiff Sunny and 80 LLC

SUBJECT: Motion to Set Aside Default

Moving Party: Defendant Jose Carlos Uribe

Resp. Party: Plaintiff Sunny and 80 LLC

SUBJECT: Motion to Set Aside Default

Moving Party: Defendant Miguel Uribe

Resp. Party: Plaintiff Sunny and 80 LLC

SUBJECT: Motion to Set Aside Default

Moving Party: Defendant Israel Jimenez Miron

Resp. Party: Plaintiff Sunny and 80 LLC

SUBJECT: Motion to Set Aside Default

Moving Party: Defendant Jose Miguel Salisone Rosas

Resp. Party: Plaintiff Sunny and 80 LLC

The Motions to Set Aside Default are DENIED without prejudice.

The Requests for Default Judgment are CONTINUED to June 14, 2024.

BACKGROUND:

On October 6, 2023, Plaintiff Sunny and 80 LLC filed its Complaint against Defendants Group Atom Development Inc., Jose Carlos Uribe, Miguel Uribe, Israel Jimenez Miron (erroneously sued as “Israel Jimeniz Miron”), and Jose Miguel Salisone Rosas on causes of action arising from alleged construction work without a license in violation of the Business and Profession Code.

On January 4, 2024, by request of Plaintiff, the Clerk’s Office entered default on each of the Defendants.

On February 16 and 20, 2024, Plaintiff submitted filed Judicial Council Form CIV-100, Request for Court Judgment for each of the Defendants, as well as other documents in support of Plaintiff’s Requests for Default Judgment.

On February 20, 2024, by request of Plaintiff, the Clerk’s Office dismissed without prejudice the doe defendants from the Complaint.

On March 4, 2024, each of the Defendants filed their own Motion to Set Aside Default. In addition, each of the individual Defendants filed a declaration, and one request for judicial notice was filed.

On March 4, 2024, Plaintiff filed amended versions of Judicial Council Form JUD-100, Proposed Judgment regarding all Defendants except Defendant Israel Jimenez Miron.

On March 8, 2024, by request of Plaintiff, the Clerk’s Office entered default on Defendant Israel Jimenez Miron. (Default was re-entered due to a prior issue with this Defendant’s incorrect name in the pleading.) Plaintiff also submitted a declaration in support of Plaintiff’s Request for Default Judgment against Defendant Israel Jimenez Miron.

On April 29, 2024, Plaintiff filed Oppositions to each of the five Motions to Set Aside Default. In support of each Opposition, Plaintiff concurrently filed: (1) Declaration of William F. Bresee; (2) Supplemental Declaration of William F. Bresee; (3) Request for Judicial Notice; and (4) Proof of Service.

On May 9, 2024, Defendants filed their Omnibus Reply in support of their Motions to Set Aside Default.

On May 13, 2024, Plaintiff filed its Objection to Defendants Omnibus Reply.

ANALYSIS:

I. Objection

Plaintiff’s Counsel filed a document it titled “Objection to Reply to Defendant’s Opposition to Motion to Set Aside Entry of Default.”

There appears to be some confusion within the Objection. In some parts of the Objection, Plaintiff’s Counsel refers to “Defendants’ Opposition to the Motions to Set Aside Default.” (Objection, pp. 1:18–19, 2:7–8.) In other parts of the Object, Plaintiff’s Counsel refers to Defendants’ “reply.” (Id. at p. 1:20–23.)

To clarify, Defendants moved to vacate the defaults entered against them, and they have filed a single “Omnibus Reply” in support of their individual Motions to Set Aside Default. Plaintiff is the party that filed multiple Oppositions to the individual Motions to Set Aside Default.

Plaintiff’s Counsel argues that the Omnibus Reply “is late and respectfully should not be considered by the Court” because the Omnibus Reply “was filed on May 9, 2024, but was due on May 6, 2024.” (Objection, p. 1:20–23.)

“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” (Code Civ. Proc., § 1005, subd. (b), abridged.)

The hearing on the Motions to Set Aside Default is May 17, 2024. Nine court days before the hearing was May 6, 2024; five days court days before the hearing was May 10, 2024. As the Oppositions were all filed on April 29, 2024 and the Omnibus Reply was filed on May 9, 2024, it appears all the responsive papers in this matter were timely filed.

The Objection is OVERRULED.

II. Requests for Judicial Notice

A. Defendants’ Request for Judicial Notice

Defendants request that the Court take judicial notice of a complaint filed in Case No. 23STCV17548, SoCal Lien Solutions LLC v. Sunny and 80 LLC, et al., filed on July 26, 2023 in the Superior Court of California, County of Los Angeles.

The Court GRANTS judicial notice of this item.

B. Plaintiff’s Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of a first amended complaint filed in Case No. 23STCV18712, Evolution Design LLC v. Group Atom Development Inc., et al., filed on October 6, 2023 in the Superior Court of California, County of Los Angeles.

The Court GRANTS judicial notice of this item.

III. 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).)

IV. Discussion

A. The Parties’ Arguments

Defendants move the Court to set aside the defaults entered against them. (Motions to Set Aside Default, p. 4:18–19.)

Defendants argue that relief is appropriate here pursuant to Code of Civil Procedure section 473, subdivision (b) due to their inadvertence, surprise, and excusable neglect because they thought that another entity was handling the dispute with Plaintiff in another case. (Motions to Set Aside Default, p. 3:17–20.)

Defendants submit declarations that attest under penalty of perjury to the same. (Decls. Miguel Uribe; Jose Carlos Uribe; Israel Jimenez Miron; Jose Miguel Salisone Rosas.)

Defendants note that they do not present a proposed answer because they plan to demur that the earlier action precludes the instant action. (Id. at p. 21–23.)

Plaintiff disagrees, arguing: (1) that Defendants have not shown any credible or competent evidence of mistake, inadvertence, surprise, or excusable neglect sufficient to relieve them from default; (2) that Defense Counsel’s knowledge of Plaintiff’s action against Defendants as being separate and distinct from the earlier litigation is imputed to Defendants, and the inexcusable neglect and failure to respond does not justify setting aside the default; (3) that the Motions to Set Aside Default should be denied because Defendants did not submit a proposed responsive pleading; and (4) that if the Court does set aside the entry of default, attorney’s fees should be imposed against Defendants and fully paid as a condition precedent pursuant to Code of Civil Procedure section 473, subdivision (c)(1). (Oppositions, pp. 7, 12–14.)

Defendants reiterate their arguments in their Omnibus Reply.

B. Discussion

Defendants have shown credible and competent evidence of mistake, inadvertence, surprise, and excusable neglect. Specifically, Defendants submitted declaratory evidence that indicates they were confused about the multiple ongoing actions, did not realize this was a separate action, and did not realize they needed to respond to this separate action.

The Court does not agree with Plaintiff that Defense Counsel’s knowledge should be imputed to Defendants. The Court has not been presented with evidence that would indicate Defense Counsel (a) actually had such knowledge and/or (b) actually transmitted such knowledge to any of the Defendants.

The Court also does not agree that attorney’s fees are appropriate here. Defendants claim that this was a mistake by Defendants, not by Defense Counsel. Further, this appears to have been a reasonable mistake.

However, the Court still cannot set aside any of the defaults.

“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 . . . .” (Code Civ. Proc., § 473, subd. (b).) This has been a strictly-enforced rule for over 100 years. (See Bailiff v. Hildebrandt (1920) 47 Cal.App. 564, 566–567.)

Defense Counsel did not submit a proposed answer, demurrer, or other pleading to be filed upon setting aside of the default. Instead, Defense Counsel appears to believe that the statute first requires setting aside the default before a proposed demurrer is to be presented to the Court. (Motions to Set Aside Default, p. 3:21–23.) This is incorrect. As stated above, “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, . . .” (CCP §473(b).)

Because Defense Counsel did not provide an accompanying pleading, the Court must deny the motions.

The Court shall continue the Requests for Default Judgment by one month. Defense Counsel may re-file the motions with the accompanying pleading to be heard no later than the date of the continued hearings on the Request for Default Judgment.

V. Conclusion

The Motions to Set Aside Default are DENIED without prejudice.

The Requests for Default Judgment are CONTINUED to June 14, 2024.