Judge Michelle Williams Court, Case Number: BC604605, Date: 2024-01-18 Tentative Ruling

Judge: Michelle Williams Court, Case: BC604605, Date: 2024-01-18 Tentative Ruling

Case Number: BC604605 Hearing Date: January 18, 2024 Dept: 1

BC604605 JORGE VARGAS VS HANI MAMMO ET AL

Defendant’s Motion to Vacate Judgment

TENTATIVE RULING: Defendant Hani Mammo’s Motion to Vacate Judgment is GRANTED. Moving party to give notice.

Background

On December 21, 2015, Plaintiff Jorge Vargas filed this action against Hani Mammo and G.V. Property Management arising out of allegations that gate fell onto Plaintiff causing Plaintiff injury. On November 27, 2017, Plaintiff substituted Defendant Giselle Valenzuela for Doe 1.

On December 27, 2021, the court held trial and awarded judgment in favor of Plaintiff. The Court entered judgment against Hani Mammo on January 11, 2022.

On March 29, 2022, Hani Mammo, through attorney Christopher Reyes, filed a motion to set aside/vacate the trial judgment. The motion argued Defendant Mammo was not served with notice of the trial due to improper service. The Court granted the motion on April 27, 2022 and vacated the judgment.

On December 13, 2022, the court called the matter for trial and awarded judgment in favor of Plaintiff.

On December 20, 2022, Defendant Mammo filed a Notice of Association of Counsel, indicating Defendant would also be represented by attorney Eddie Damas.

On December 22, 2022, the Court entered Plaintiff’s request for dismissal as to Defendants G.V. Property Management and Giselle Valenzuela and the Court entered judgment against Defendant Mammo in the amount of $428,753.00.

Motion to Vacate Judgment

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.” (Code Civ. Proc. § 473(b).) This relief is discretionary.

Section 473(b) also contains a mandatory relief provision which provides: “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.”

Where Section 473(b) does not apply, the Court retains the ability to vacate judgments as a matter of equity. (See e.g. Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981; Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97; Orange Empire Nat. Bank v. Kirk (1968) 259 Cal.App.2d 347, 352–353.)

Defendant’s Motion is Untimely Under Section 473(b)

Defendant’s motion primarily relies upon Code of Civil Procedure section 473(b) to contend the judgment should be vacated. (Mot. at 3:17-28, 7:19-8:15; Reply at 2:6-16, 4:2-4, 5:6-9, 6:19-20.) As argued by Plaintiff, (Opp. at 2:13-24), Defendant’s motion pursuant to Section 473(b) is untimely under the statute’s express terms. Requests for both discretionary and mandatory relief under Section 473(b) must be made within six months of the judgment. (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 736 n.3 (“The six-month time limit for granting relief under section 473 is jurisdictional and relief cannot be granted under section 473 if the application for such relief is instituted more than six months after the entry of the judgment, order or proceeding from which relief is sought.”).) Here, judgment was entered on December 22, 2022. Defendant did not file the instant motion until October 19, 2023, well after the six month deadline expired.

In reply, Defendant contends “California Appeals Courts have heard, and ruled in favor, to uphold setting aside defaults after the 6-month window stated in CCP 473. (See Gray v. Laufenberge below).” (Reply at 4:7-9.) However, Gray v. Laufenberger (1961) 195 Cal.App.2d Supp. 875 has no application here. In Gray, the court entered the defendant’s default on March 21, 1960 and entered the default judgment on May 31, 1960. (Id. at 877.) “On September 15, 1960, defendant filed notice of motion under Code of Civil Procedure section 473 to set aside default and default judgment,” within six months of both the default and the default judgment. (Ibid.) The trial court thereafter allowed the filing of a supplemental declaration on October 27, 1960, more than six months from the judgment. (Ibid.) The Court of Appeal found the submission of a notice of motion within six months of the judgment sufficient to render the motion timely under Section 473 and supplemental declarations, filed after the six-month period, were also properly considered. (Id. at 880 (“we conclude that the trial court had jurisdiction to consider the supplemental affidavits and rule upon the motion after expiration of the six months’ period.”).) Here, Defendant did not file any documents related to the motion until after the expiration of the six month period. Accordingly, Defendant’s reliance upon Gray is misplaced.

Separately, the Court notes the mandatory provisions of Section 473(b) do not apply where, as here, an attorney fails to appear at trial. (Vandermoon v. Sanwong (2006) 142 Cal.App.4th 315, 321 (“for purposes of the mandatory provision of section 473(b), a ‘default’ means only a defendant’s failure to answer a complaint, and a ‘default judgment’ means only a judgment entered after the defendant has failed to answer and the defendant’s default has been entered.”).)

Code of Civil Procedure section 473.5 Does Not Apply

Defendant’s motion also includes a heading stating: “This Motion To Set Aside Under CCP § 473.5 is Timely.” (Mot. at 9:1.) Defendant does not cite any authority supporting this argument. Section 473.5 only applies where “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action.” (Code Civ. Proc. § 473.5(a).) As noted above, the judgment entered against Defendant was not a default judgment and Defendant filed an answer on December 1, 2016. Accordingly, Section 473.5 does not apply here.

Defendant Demonstrated a Basis for Relief Under the Court’s Equitable Powers

While Defendant only expressly references the Court’s equity powers once, in reply, (Reply at 3:23-25), the cases cited by Defendant hold that equitable relief is available outside the statutory procedures. (See e.g. Slusher v. Durrer (1977) 69 Cal.App.3d 747, 754.) Additionally, the timing and basis for Defendant’s motion is a clear appeal to the Court’s equitable powers.

Generally, “the law strongly favors trial and disposition on the merits.” (Brochtrup v. Intep (1987) 190 Cal.App.3d 323, 329.) “Where, as in the case under review, defendant’s motion is made more than six months after entry of default, the motion is not directed to the court's statutory power to grant relief for mistake or excusable neglect (Code Civ.Proc., s 473), but is rather submitted to the court’s inherent equity power under which, apart from its statutory authority, the court has the power to grant relief from a default judgment where there has been extrinsic fraud or mistake.” (Orange Empire Nat. Bank, supra, 259 Cal.App.2d at 352–353.)

Defendant notes their prior counsel failed to appear at all but one hearing after the court granted the first motion to vacate judgment on April 27, 2022, despite notice thereof. Defendant’s counsel did not file trial documents on Defendant’s behalf and did not appear at trial. Defendant provides a declaration stating attorney Reyes did not tell Defendant he had missed any hearings, never told Defendant about the trial date, never told Defendant about the judgment, and told Defendant he was preparing a deposition, despite the case having already concluded. (Mammo Decl. ¶¶ 4-5, 8, 10-14.) Defendant first learned of the judgment on October 11, 2023. (Id. ¶ 15.) Defendant previously filed an answer and diligently filed the instant motion less than two weeks after that discovery.

Where, as here, there is substantial evidence that a party’s counsel abandoned their client, resulting in an uncontested judgment, the court may set aside the resulting judgment. (Daley v. Butte County (1964) 227 Cal.App.2d 380, 391 (“Despite the general rule which imputes the attorney’s neglect to the client, there are exceptional cases in which the client, relatively free from personal neglect, will be relieved of a default or dismissal attributable to the inaction or procrastination of his counsel.”); Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898–899 (“The issue, therefore, becomes whether counsel’s conduct amounted to ‘positive misconduct’ by which [the client] was effectually and unknowingly deprived of representation.”); Buckert v. Briggs (1971) 15 Cal.App.3d 296, 301 (“The exception is premised upon the concept the attorney's conduct, in effect, obliterates the existence of the attorney-client relationship and for this reason his negligence should not be imputed to the client.”); Orange Empire Nat. Bank, supra, 259 Cal.App.2d at 353 (“there are exceptional cases in which the client who is relatively free from personal neglect will be relieved from a default or dismissal attributable to the inaction or procrastination of his counsel.”).)

“The law permits a client to sit back in peace and confidence. . . . [Defendant’s] attorneys displayed an unwillingness to either [defend his] lawsuit or to cease representing [him], despite [his] continued checking on the progress of [the] lawsuit.” (Fleming v. Gallegos (1994) 23 Cal.App.4th 68, 73.) Defendant’s lack of negligence and subsequent diligence weighs in favor of granting relief. (Seacall Development, Ltd. v. Santa Monica Rent Control Bd. (1999) 73 Cal.App.4th 201, 208 (“[Counsel] sat on the case and did nothing to represent Seacall. Once Seacall discovered the case had been dismissed it moved within a few weeks to set aside the dismissal. No prejudice to the Board would result from the granting of that motion.”); Buckert, supra, 15 Cal.App.3d at 301–302 (“the trial court was entitled to conclude the attorney’s failure to advise [Defendant] of the date of trial constituted positive misconduct within the exception to the rule heretofore stated, and their failure to attend the trial was the product of extrinsic surprise and mistake without negligence on their part.”); Orange Empire Nat. Bank, supra, 259 Cal.App.2d at 353 (“Where a client is unknowingly deprived of effective representation by counsel’s failure to . . . communicate with the court, client, and other counsel, . . . the client will not be charged with responsibility for the misconduct of nominal counsel of record, providing the client acts with due diligence in moving for relief after discovery of the attorney's neglect, and the opposing party's rights will not be prejudiced nor suffer injustice as a result of the granting of relief.”).)

Additionally, Plaintiff failed to demonstrate any prejudice in opposing the motion. (Buckert, supra, 15 Cal.App.3d at 302–303 (“Where there is no showing the party opposing the motion to vacate the judgment ‘has suffered any prejudice or that injustice will result from the trial of the case upon its merits, very slight evidence will be required to justify a court in setting aside the default.”).)

The Court finds the December 22, 2022 judgment against Defendant Mammo is appropriately vacated under the circumstances.