Judge: Monica Bachner, Case: 22STCV35219, Date: 2023-03-07 Tentative Ruling

Case Number: 22STCV35219    Hearing Date: March 7, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Hilda Perez’s motion to vacate/set aside entry of default, default judgment for possession only, and quash the writ of possession as invalid is granted.

Defendant Hilda Perez (“Hilda”) (“Defendant”), pro per, moves for an order to set aside the unlawful detainer entry of default, default judgment entered against her, and writ of possession brought by Plaintiff Hobart Properties, LLC (“Hobart”) (“Plaintiff”) in this action.  (Notice of Motion, pgs. 1-2; C.C.P. §§473(b), (d), §473.5, §128(a)(8).)  Defendant Hilda moves to set aside the default and judgment on the grounds of Defendant’s “surprise, mistake, excusable neglect, or inadvertence,” that default was entered despite Defendant’s lack of actual notice of the lawsuit in time to respond, that the default is void because the legal papers were not served on Defendant at all or were improperly served, that the default is void since it was based (in whole or in part) on external fraud or mistake, and that the default is invalid/void and therefore any writ of possession/execution used to enforce the judgment was improperly issued.  (Notice of Motion, pg. 2; C.C.P. §§473(b), (d), §473.5, §128(a)(8).)

Background

On November 4, 2012, Plaintiff filed its complaint against Defendant Hilda and non-moving Defendant Tanya Perez (“Tanya”) (collectively, “Defendants”).  Plaintiff filed a proof of service on “Hilda Perez” by substituted service on December 13, 2022.  On December 13, 2022, the Clerk entered default against Defendants.  After default was entered, Defendant Hilda filed an answer and application to prevent forfeiture due to COVID-19 rental debt on December 21, 2022.  The Clerk entered a Default Judgment on December 28, 2022, for possession only. A Writ of Possession was filed on February 8, 2023.

On March 1, 2023, Defendant Hilda filed the instant motion pro per. On March 3, 2023, Plaintiff filed an opposition. As of the date of this hearing, Defendant Hilda has not filed a reply.

C.C.P. §473(b)

“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 . . . .”  (C.C.P. §473(b).)

Absent prejudice to the plaintiff and diligence by the defendant, only “very slight” evidence is needed to set aside a default.  (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 695, quoting McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352, 359-360.)  The neglect to be excusable must be an act or omission which might have been committed by a reasonably prudent person under the same circumstances.  (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 279.)  The burden of proof on such a motion is on the moving party who must establish his position by a preponderance of the evidence.  (Id., quoting Luz v. Lopes (1960) 55 Cal.2d 54, 62.)

As a preliminary matter, Defendant Hilda’s motion is timely, as it was filed on March 1, 2023, and default judgment was entered by the clerk on December 28, 2022.  (C.C.P. §473(b).)  On December 21, 2022, Defendant filed an answer, which substantially complies with the requirements for relief under the statute.  (C.C.P. §473(b); see Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403 [finding substantial compliance where counsel offered proposed answer at motion hearing rather than serving it with moving papers].)

Defendant Hilda declares she did not receive the summons and complaint in this case or did not receive them in the legally required way.  (Decalration, pg. 7.)  Defendant Hilda declares she did not avoid service of the legal papers or do anything that interfered with notice and service of the summons.  (Declaration, pg. 9.) Defendant Hilda declares the summons was handed personally to her father, who is 78, and she is not sure how much time passed before her father remembered to give the summons to her.  (Declaration, pg. 8.)  Defendant Hilda declares the summons was never mailed to her after substituted service was effected on her father.  (Declaration, pg. 8.)  Defendant Hilda declares she was very sick/hospitalized which prevented her from filing her answer or going to court because she was under great distress due to her father reporting suicidal thoughts, and she became ill due to her stress and great fear of losing her only parent whom she loves dearly.  (Declaration, pg. 8.)  Defendant Hilda declares she discovered there was a default against her on February 25, 2023, and when she found out, she filed the instant motion within a reasonable time and within the statutory period.  (Declaration, pg. 9.)  Defendant Hilda declares that if the Court does not grant this motion, it would be unfair and cause her harm because she and her father would become homeless and in immediate danger.  (Declaration, pg. 9.)

Plaintiff’s argument that Defendant Hilda failed to provide evidence that her failure to respond to this action in a timely manner is unavailing.  (Opposition, pg. 5.)  Plaintiff’s opposition on the basis that Defendant Hilda timely sought and received assistance in the preparation of form documents to litigate the instant action on the merits is not well taken.

Defendant Hilda has met her burden to establish the judgment and default entered against her was the result of mistake, inadvertence, surprise, and/or excusable neglect.  This Court sets aside the entry of default, default judgment, and quashes the writ of possession as invalid against Defendant Hilda because her filing is timely, substantially complies with the procedural requirements of C.C.P. §473(b), and Defendant Hilda’s omission was one a reasonably prudent person would commit under the same circumstances because she did not have actual notice of the summons and complaint and became ill due to stress induced by her father’s medical condition.  (Transit Ads, Inc., 270 Cal.App.2d at pg. 279.)

Accordingly, Defendant Hilda’s motion to set aside/vacate the entry of default, default judgment for possession only, and motion to quash writ of possession as invalid is granted. 

Dated:  March _____, 2023

Hon. Monica Bachner

Judge of the Superior Court