Judge Peter A. Hernandez, Case 22PSCV00083 2022-09-20 Tentative Ruling

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Gloria Mendoza (“Gloria”) and Jose are siblings. On January 13, 2020, Gloria amended her will to cut out Jose and his issue from same because she was upset that Jose had filed a lawsuit against his mother Sofia and sisters Guadalupe and Rose for breach of promissory estoppel based on Gloria’s promise to allow him to reside in the property located at 4110 Rowland Ave., El Monte, CA 91731 (“subject property”) for as long as he lived and not to sell the subject property at any time during Jose’s lifetime. This promise was included in a letter written by Jose’s parents. On or about September 30, 2019, Rose visited the subject property, took Sofia away from same and developed a plan to sell the subject property.

On January 25, 2022, Jose filed a complaint, asserting causes of action against Gloria and Does 1-10 for:

“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 . . . 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. . .” (Code Civ. Proc., § 473, subd. (b).)

The court determines that the Declaration of Attorney Daryl Crouse (“Crouse”) sets forth a sufficient basis for discretionary relief under Code of Civil Procedure § 473, subdivision (b)[1]. Gloria states that her demurrer was originally scheduled for hearing on April 14, 2022, and that a Case Management Conference and Order to Show Cause Re: Service had been scheduled for May 10, 2022. Crouse attempts that he “mistakenly put the demurrer hearing on May 10, 2022, the same day of the Case Management Conference.” (Crouse Decl., ¶ 2.) Further, while the court notes that a “[Proposed] Answer” was filed with the instant motion on April 28, 2022, Gloria explains that this was done “should the court deny this [motion];” as well, the court notes that the “[Proposed] Answer” expressly stated that it was being “Filed concurrently with Petition to Reset Hearing on Defendant’s Demurrer.”

The unopposed motion, then, is granted. The court will strike the “[Proposed] Answer” filed by Gloria on April 28, 2022 and will reset the hearing on the demurrer and Case Management Conference for November 29, 2022 at 9:30 a.m.

[1] Based upon the above-quoted language of Code of Civil Procedure § 473, subdivision (b), it does not appear to the court that mandatory relief is available under the circumstances, inasmuch as there has not been a default or dismissal.