Judge: Peter A. Hernandez, Case: 24STCV05809, Date: 2024-09-13 Tentative Ruling

Case Number: 24STCV05809    Hearing Date: September 13, 2024    Dept: 34

Abrar v. King (24STCV05809)

Defendant Tayfun Paul Kadioglu’s Motion to Set Aside Order and/or for Reconsideration is DENIED.

Background

Plaintiff Shahram Pascal Abrar, assignee of Yellow Hope Holdings, LLC (“Plaintiff”), alleges as follows:

On May 23, 2022, Tayfun Paul Kadioglu, erroneously sued as Tayfun King (“Kadioglu” or “Defendant”), entered into a written residential lease agreement with Plaintiff to pay $18,500.00 per month until May 31, 2024. Defendant failed to make his monthly rent payments as agreed and owes past-due rent in the amount of $65,500.00. On February 21, 2024, Plaintiff personally served Defendant with notice to vacate or pay rent. Defendant has failed to vacate the premises or pay the past-due rent amount.

On August 16, 2024, the court granted Defendant’s Motion for Judgment on the Pleadings.

Legal Standard

            CCP § 473(b)

Under Code of Civil Procedure section 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 own 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. 

(CCP § 473(b) (emphasis added).) 

            CCP § 1008(a)

“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).)

“While a party has the right to ‘communicat[e] the view to a court that it should reconsider a prior ruling’ (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108), the party should not ‘file a written motion to reconsider’ if it cannot satisfy the procedural requirements of Code of Civil Procedure section 1008 (35 Cal.4th at p. 1108). ‘The court need not rule on any suggestion that it should reconsider a previous ruling . . .’ (Ibid.)” (Farmers Ins. Exchange v. Superior Court (2013) 218 Cal.App.4th 96, 102, fn. 10 [emphasis in original].)

Discussion

Plaintiff moves the court to set aside its order filed August 16, 2024 and/or for reconsideration of the court’s granting of Defendant’s Motion for Judgment on the Pleadings.

Plaintiff first contends that relief should be granted under section 473(b) because his central focus at the hearing on the Motion for Judgment on the Pleadings concerned the purpose of the ordinance at issue in the three-day notice and not the issue that he seeks to argue now concerning “judicial admissions” to the Answer in the Complaint. However, this issue was raised in passing at the initial hearing when Defendant’s counsel rightly argued that the three-day notice was an element of the cause of action for Unlawful Detainer. Moreover, to the extent that Plaintiffs seeks to suggest that filing an Answer to a Complaint waives an element of a cause of action, the court finds that such a view is not compatible with the law.

But more importantly to the procedural nature of the instant motion, section 473(b) does not compel a different result. Here, Plaintiff is proceeding under the discretionary prong of section 473(b), as a review of his counsel’s declaration does not demonstrate a mistake, inadvertence, surprise or neglect on behalf of counsel.  To the extent he infers in his declaration that he believes he is right on the law, the court takes exception and will not exercise its discretion to grant the motion under section 473(b).

Furthermore, as set forth above, Plaintiff does not provide new or different facts, circumstances, or law to suggest that section 1008(a) is applicable.

Conclusion

In light of the foregoing, the Motion to Set Aside Order and/or for Reconsideration is DENIED.