Judge Michelle Williams Court, Case BC717120 2022-10-27 Tentative Ruling

Judge: Michelle Williams Court, Case: BC717120, Date: 2022-10-27 Tentative Ruling

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Case Number: BC717120 Hearing Date: October 27, 2022 Dept: 74

BC717120 338 SOUTH AVENUE 16 LLC VS MICHAEL HAROLD MEYER

Defendant, Lamont Roberts’ Motion to Set Aside Default Judgment and Default and Allow Amended Answer to be Deemed Filed

TENTATIVE RULING: The motion is DENIED.

Background

On August 7, 2018, Plaintiff 338 South Avenue 16, LLC (“Plaintiff”) filed a complaint against Defendants Michael Harold Meyer, an individual doing business as Meyer Law Organization, Lamont Karlton Roberts, an individual doing business as Goliath Films, and Does 1 through 20. The complaint alleged two causes of action: (1) Breach of Written Lease and (2) Common Counts. Plaintiff alleges that the Defendants made illegal improvements and were using the property as a residence in violation of ordinances. The Defendants then abandoned the lease and the Plaintiffs incurred over $10,000 in expenses to repair the illegal construction.

On November 30, 2018, Plaintiff filed a Request for Entry of Default as to Defendant Roberts, which was rejected. On January 11, 2019, Plaintiff filed a Request for Entry of Default as to Defendant Robert, and his default was entered.

On July 29, 2021, Defendant Lamont Roberts filed his Motion to Set Aside Default and Allow Amended Answer to be Filed. The motion argued: (1) the default should be set aside pursuant to the discretionary and mandatory provisions of Code of Civil Procedure section 473(b); (2) service was defective because the process server did not attach a declaration of diligence; and (3) default was waived by Plaintiff’s affirmative conduct.

On March 8, 2022, the Court denied Defendant Roberts’ July 29, 2021 motion to set aside default and allow amended answer.

On May 19, 2022, the Court entered judgment against Defendants Michael Harold Meyer and Lamont Karlton Roberts on its Second Final Statement of Decision.

Motion

On May 26, 2022, Defendant Lamont Roberts filed the instant Motion to Set Aside Default Judgment and Default and Allow Amended Answer to be Deemed Filed. This motion argues: (1) relief from the default judgment is mandatory under Code of Civil Procedure section 473(b); (2) service was defective because the process server did not attach a declaration of diligence; and (3) default was waived by Plaintiff’s affirmative conduct.

The motion is unopposed.

Motion to Vacate

Applicable Statutes

The mandatory relief provision of Code of Civil Procedure section 473(b) provides “[n]otwithstanding 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.”

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. (Code Civ. Proc. § 1008(a).)

“A motion for reconsideration may only be brought if the party moving for reconsideration can offer new or different facts, circumstances, or law which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion.” (Forrest v. State Of California Dept. Of Corporations (2007) 150 Cal.App.4th 183, 202 disapproved on other grounds by Shalant v. Girardi (2011) 51 Cal.4th 1164, 1172.) Accordingly, “[f]acts of which the party seeking reconsideration was aware at the time of the original ruling are not ‘new or different.’” (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468.)

Defendant’s Motion is an Improper Motion for Reconsideration and Defendant has not Demonstrated a Proper Basis for Relief

Defendant’s counsel states “[t]his is not a motion for reconsideration. When the earlier motion was filed and determined, Mr. Roberts was in default, but a default judgment had not yet been entered. The default judgment was finally entered on May 19, 2022. This motion is made within six months of entry of the default judgment. Because the motion is supported by an attorney’s affidavit of fault, relief is mandatory. This motion presents an entirely different set of circumstances than the prior motion.” (Meyer Decl. ¶ 2.)

As noted above, Defendant’s motion makes the identical arguments that Defendant made in the July 29, 2021 motion that the Court denied on March 8, 2022. Both motions sought relief on the same legal and factual grounds: (1) mandatory relief based upon attorney fault pursuant to Code of Civil Procedure section 473(b); (2) relief based upon the lack of a declaration of diligence; and (3) relief based upon assertions of waiver by Plaintiff’s post-default conduct. Defendant’s second motion is accompanied by the identical declaration of attorney Eugene Fu dated July 28, 2021. Thus, Defendant’s motion is largely an improper motion for reconsideration.

Defendant does not provide any new or different facts or law within the meaning of Code of Civil Procedure section 1008 as to its arguments regarding the validity of service and Plaintiff’s alleged waiver of the default by its conduct. The facts of service and Plaintiff’s conduct existed and were raised by Defendant when the Court ruled on the prior motion. Accordingly, the instant motion is a procedurally improper motion for reconsideration of the Court’s March 8, 2022 order on Defendant’s motion raising identical issues.

The only fact that did not exist at the time of the prior motion is the entry of the May 19, 2022 judgment. Defendant contends “[o]ne week has lapsed since entry of judgment on May 19, 2022; consequently, the application for relief under Section 473(b) is timely as made within six months of entry of default judgment.” (Mot. at 6:14-17.) However, the declaration of Eugene Fu does not establish that the default was a product of his mistake, inadvertence, surprise, or neglect as required. The filed proof of service indicated service on August 28, 2018. Fu did not become involved in the action until December 2018. (Fu Decl. ¶ 2.) Fu attests “[w]hen I was initially contacted to provide representation for defendants in this action, I contacted Plaintiff’s counsel, Vivoli Saccuzzo LLP by telephone to inquire about status. I recall being told, (whether by Mr. Vivoli or another attorney in the office), that a request for entry of default had been rejected.” (Fu Decl. ¶ 7.) Plaintiff’s initial request for entry of default was filed on November 30, 2018, prior to Fu’s involvement.

Accordingly, mandatory relief is not available. (See Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 912 (“The statute mandates relief ‘unless the court finds that the default ... was not in fact caused by the attorney's mistake, inadvertence’ etc. . . . While attorney cover-up is obviously one instance in which the default would not truly be caused by the attorney, there are others like the one at bar in which a neglectful client permits the default to be taken against him before retained counsel enters the scene.”); Bailey v. Citibank, N.A. (2021) 66 Cal.App.5th 335, 350 (“it is undisputed that Citibank's default was entered on November 14, 2018, but Citibank's attorney, Jeremy Katz, was not referred or assigned to act as attorney on this case until January 10, 2019. Because attorney error could not possibly have caused the default in this case, mandatory relief was unavailable under the reasoning of Cisneros as a matter of law.”); Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 915 (“the trial court determined Krayzman's counsel's declaration of fault was not credible. . . . Substantial evidence supported the court's determination. Cowan provided a declaration stating counsel had previously told him Krayzman did not retain him until after the deadline for responsive pleadings had already passed.”).)

The motion is DENIED in its entirety.