Judge Peter A. Hernandez, Case Number: 22PSCV00260, Date: 2024-05-29 Tentative Ruling

Defendant Mao Lun Huang’s Motion to Set Aside The Entry of Default and Default Judgment is DENIED.

Mao Lun Huang (“Huang”) and Chun Xiao Liang (“Liang”), individually and as Trustees of the Huang and Liang Family Trust (“Defendants”), own, inhabit and/or operate the property located at 4723 Santa Anita Avenue in El Monte (“subject property”). On June 12, 2020, members of the El Monte Police Department (“Police”) executed a search warrant at the subject property after an investigation was initiated into an illegal marijuana cultivation operation taking place at the subject property. Upon executing the warrant, the Police observed that the subject property was a warehouse with a large open interior. There were numerous rooms constructed with drywall that did not appear to be constructed in compliance with building safety codes. There were also numerous exposed electrical wiring and electrical panels that were not in compliance with building safety codes. It was determined the subject property had been converted for illegal marijuana cultivation. Each room contained numerous marijuana plants in various stages of growth. Additionally, industrial lighting, electrical modifications, and air filtration systems commonly used in the large-scale indoor cultivation of marijuana were observed throughout the subject property. The Police seized marijuana plants and marijuana cultivation equipment.

On March 17, 2022, Plaintiff filed a complaint, asserting causes of action against Defendants and Does 1-100 for:

4. Violation of Unfair Competition Law (Business & Professions Code §§ 17200 et seq.)

On November 17, 2023, the matter came on calendar for Orders to Show Cause Re: Why the Matter Should Not Be Dismissed and Re: Failure to File Proof of Service and a Case Management Conference. No appearance was made by Defendants; at that time, the court vacated the OSCs and continued the CMC to December 18, 2023.

On February 2, 2023, the matter came on calendar for a CMC. No appearance was made by Defendants; at that time, the court scheduled a default prove-up hearing for May 3, 2024.

On May 3, 2024, a default prove up hearing was held; at that time, the court found Defendants in violation of the complaint and advised that it would enter judgment, jointly and severally, against them in the amount of $180,000.00. Judgment has not been entered, to date.

“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, subd. (b).)

Huang moves the court, pursuant Code of Civil Procedure § 473, for an order setting aside entry or default and/or default judgment on the basis of excusable neglect.

At the outset, the court notes that the instant motion was filed on behalf of Huang only, whereas the reply brief is purportedly filed on behalf of both Huang and Liang. Liang cannot “join” the motion via a reply brief. The following analysis pertains to Huang only as the moving party:

Huang has moved for discretionary relief, on the basis of excusable neglect. (Motion, 7:3, 8:6-7)[2]. “Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the same circumstances.” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419 [quotations and citation omitted]).

Huang’s counsel Matthew Mullhofer (“Mullhofer”) attests that “[t]he Law Offices of Matthew C. Mullhofer had an office in Irvine, California, at 18012 Sky Park Circle, Ste. 100A. Several correspondences were lost when sent to this address due to the postal service’s inability to locate this Suite. This address assigned by property management “Suite 100A” did not exist as a legal address with the postal service. By the time our firm realized there was an address discrepancy, we were constantly experiencing a delay or loss of our mail. After unsuccessfully attempting to resolve the mail issue, we instead relocated our office to our current location.” (Mullhofer Decl., ¶ 5). Mullhofer further attests that “[a]lthough we relocated on April 15, 2024, our office continues to encounter mail issues due to the same discrepancy as we are still awaiting forwarded correspondence. We are also dealing with the typical inconveniences of changing an address which contributed to calendaring mistakes.” (Id., ¶ 6). Mullhofer lastly attests that “the Notice of Ruling served by Plaintiff’s Counsel is defective. It is dated February 7, 2024, but was not filed until April 30, 2024.” (Id., ¶ 7).

Huang’s motion clarifies that “[o]ur law firm suffered excusable neglect because we failed to properly calendar two case management conference hearings, but through no fault of its own: the first absence was due to a problem with the mail carrier at the Irvine office, which led to several lost correspondences (See Mullhofer Declaration, ¶ 5) and then our addition of a second office location caused a mistake in scheduling the next hearing. (See Mullhofer Declaration, ¶ 6).” (Motion, 8:22-26).

The court docket, however, reflects that Defendants’ counsel failed to appear at three CMCs scheduled for November 17, 2023, December 18, 2023 and February 2, 2024, as well as at the May 3, 2024 default prove up hearing. Further, Plaintiff’s counsel David R. Welch attests that his office mailed the Notice of Ruling for the May 3, 2024 hearing, including the court’s minute order from the February 2, 2024 CMC, on February 7, 2024, that he send an email to Defendants’ counsel on April 27, 2024 with the Notice of Ruling and minute order as an attachment, called Defendants’ counsel on May 1, 2024 and spoke with Defendants’ counsel on May 2, 2024, during which time Defendants’ counsel advised that he intended to appear at the May 3, 2024 hearing. (Welch Decl., ¶¶ 5-7). In reply, Huang offers up a declaration from attorney Hernan Simo, who attests that he tried to register with the court’s website to remotely appear on behalf of Defendants on May 3, 2024, but was unable to do so because “less than 30 minutes remained until the beginning of the hearing.” (Simo Decl., ¶¶ 4-5). The foregoing failures, in the court’s view, do not constitute excusable neglect warranting relief.

[1] The motion was filed (and served via email) on May 3, 2024, for a May 29, 2024 hearing, which reflects insufficient Code of Civil Procedure §§ 1005, subdivision (b) (sixteen court days’ notice) and 1010.6, subdivision (a)(3)(B) (two additional court days’ notice for electronic service) notice. Monday, May 27, 2024 is a court holiday and is thus excluded for purposes of calculating notice. The motion was timely filed, but should have been electronically served no later than May 2, 2024. With that said, Plaintiffs has filed a substantive opposition: “It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion.” (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.). The court, then, will proceed to rule on the merits of the motion.

[2] Huang has not sought mandatory relief pursuant to an attorney affidavit of fault. Huang’s memorandum of points and authorities, in fact, disavows any fault of counsel, reading “[o]ur law firm suffered excusable neglect because we failed to properly calendar two case management conference hearings, but through no fault of its own. . .” (Motion, 8:22-23 [emphasis added].) Huang also blames Plaintiff for “fail[ing] to provide proper notice.” (Id., 9:21). Pursuant to Luri v. Greenwald (2003) 107 Cal.App.4^th 1119, 1124, “[a] motion under section 473 for discretionary relief accompanied by a declaration of an attorney suggesting attorney fault does not require the trial court to grant relief under the mandatory provision of section 473.”