Judge: Peter A. Hernandez, Case: 22PSCV00248, Date: 2022-08-30 Tentative Ruling
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Case Number: 22PSCV00248 Hearing Date: August 30, 2022 Dept: O
Defendant Treeium, Inc.’s unopposed Motion to Set Aside
Default is GRANTED.
Background
Plaintiff Cindy Lo (“Plaintiff”) alleges as follows:
On June 23, 2020, Plaintiff signed a
“floor plan only” service agreement with Treeium Inc. (“Treeium”) with respect
to Plaintiff’s residential property located at 1986 La Mesita Dr., Hacienda
Heights, CA 91745 (“subject property”); Plaintiff made all payments in
accordance with said agreement and Treeium provided the floor plan. On August
4, 2020, the parties entered into a second service agreement, wherein Treeium
agreed to provide a full set of blueprints of the subject property, including
the floor plan and full set of engineerings as needed until city approval, in
exchange for Plaintiff’s payment of $40,000.00 (which subsequently increased to
$54,500.00 via two change orders); the start date was August 8, 2020 and date
of substantial completion was April 28, 2021. Treeium failed to disclose that
it, as a B General Building contractor, was not qualified to provide the aforesaid
service. After execution of the August 4, 2020 service agreement, Plaintiff
repeatedly requested progress updates but was kept in the dark until 7 months
had passed since the agreed substantial completion date. In November 2021
Plaintiff first learned that Treeium had outsourced the work and that the
exterior architect and Treeium had parted ways. Plaintiff requested
cancellation of the service agreement and a refund, but Treeium refused the
refund.
On March 16, 2022, Plaintiff filed a complaint, asserting causes of action against Treeium and Does 1-10 for:
1.
Fraud
2.
Breach of Contract
3.
Breach of Implied Covenant of Good Faith and Fair
Dealing
4.
Negligent Hiring, Supervision and Retention
On May 3, 2022, Treeium’s default was entered.
Legal Standard
Code of Civil Procedure section 473, subdivision (b)
Relief under Code of Civil Procedure section 473 is either discretionary or mandatory. A motion for mandatory relief must be “made no more than six months after entry of judgment” and be “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).)
The attorney affidavit of fault must contain a “straightforward admission of fault.” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) The attorney affidavit of fault, however, need not include an explanation of the reasons for the attorney’s mistake, inadvertence surprise or neglect. (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438-441.) “Relief is mandatory when a complying affidavit is filed, even if the attorney’s neglect was inexcusable.” (Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027, 1033.) Relief must be granted unless the court finds that the default or dismissal was not in fact the attorney’s fault. (Id.)
Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (Code Civ., Proc., § 473, subd. (b).) A motion for discretionary relief must be made “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Id.) “The burden of proof. . . is on the moving party who must establish his position by a preponderance of the evidence.” (Luz v. Lopes (1960) 55 Cal.2d 54, 62.) “Because the law favors disposing of cases on their merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Rapplyea v. Campbell (1994) 8 Cal.4th 975, 980 [quotation marks and citation omitted].)
A motion for relief under section 473, subdivision (b) “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).)
Equitable Relief
Apart from any statutory authority, a court has inherent, equitable power to set aside a judgment on the basis of extrinsic fraud or mistake. (Olivera v. Grace (1942) 19 Cal.2d 570, 576-577.) “[T]he party seeking equitable relief on the grounds of extrinsic fraud or mistake must show three elements: (1) a meritorious defense; (2) a satisfactory excuse for not presenting a defense in the first place; and (3) diligence in seeking to set aside the default judgment once discovered.” (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)
Discussion
Treeium moves the court for an order setting aside the default entered May 3, 2022 and any resulting default judgment.
Treeium seeks mandatory relief pursuant to an attorney affidavit of fault. The motion is also unopposed. The motion is granted.