TENTATIVE RULING

Calendar: 5

Date: 8/26/22

Case No: 22 GDCV00272

Case Name: Broadway Vestalia, LLC v. Adadoryan, et al. 

MOTION FOR RELIEF FROM DEFAULT JUDGMENT

Moving Party: Defendants Rimond Asadorvan and Lernik Khajehsari     

Responding Party: Plaintiff Broadway Vestalia, LLC   

Accompanied by a copy of the answer or other pleading proposed to be filed?  Yes, Ex. 1.0

RELIEF REQUESTED:

Order vacating and setting aside default judgment and writ of possession

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff Broadway Vestalia, LLC brings this complaint for unlawful detainer, alleging that plaintiff is the owner of premises in Glendale, and that in October of 2020, defendants Rimond Asadoryan and Lernik Khajehsari agreed pursuant to a written agreement with plaintiff’s agent to pay monthly rent for the residential property.  The complaint alleges that the tenancy was terminated pursuant to a 3-Day Notice to Pay Rent or Quit, a second 3-Day Notice to Pay Rent or Quit, and a 15-Day Notice to Pay Rent or Quit with which defendants failed to comply by the required date.  

Plaintiff requests possession of the subject premises, costs, past due rent of $32,958.17, reasonable attorney fees, forfeiture of the agreement, and damages of $149.43 for each day that defendants remain in possession through entry of judgment. 

The file shows that on July 13, 2022, plaintiff filed a Request for Entry of Default of defendants Asadoryan, Khajehsar, and all unnamed occupants, which was entered as requested on the same date.  Also on July 13, 2022, the court entered a Judgment-Unlawful Detainer by clerk by default for possession only, entering judgment for plaintiff and against defendants that plaintiff was entitled to possession of the premises, the rental agreement was canceled, and the lease forfeited.   A writ of possession of real property was issued the same date. 

On August 9, 2022, the court heard an ex parte application by defendants Asadoryan and Khajehsar to advance the motion for relief from default judgment.  The ex parte application was granted, and the motion set for this date, and the execution of the judgment was ordered stayed.      

ANALYSIS:

Defendants Rimond Asadoryan (evidently incorrectly referred to in the opposition as Rimond “Asadorvan”) and Lernik Khajehsari bring this motion for an order vacating the default judgment and writ of possession, arguing that the default judgment was the product of mistake, inadvertence, surprise, or excusable neglect.  Defendants argue that they did not know that they were required to answer the complaint given that an attorney had told them the lawsuit would go away since their Housing is Key rental assistance application had been granted, and all back rents were going to be paid to the landlord.  

Relief is sought under the discretionary provision of CCP § 473(b), which provides:

“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.”

The trial court’s granting or denial of relief under this provision is reviewed for abuse of discretion.   State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.   It is noted that appellate courts are traditionally “favorably disposed toward such action on the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies on their merits.”  Mercantile Collection Bureau v. Pinheiro (1948) 84 Cal.App.2d 606, 608, citing Benjamin v. Dalmo Mfg. Co. (1947) 31 Cal.2d 523. 

Defendants argue that this is a case where the judgment and default were entered against defendants due to inadvertence, mistake, surprise, or excusable neglect. 

Specifically, defendants submit the declaration of defendant Asadoryan (entitled the “Declaration of Rimond Asadorvan,” but executed with a signature by Rimond “Asadoryan”), who indicates that he was told by his personal injury attorney that he did not have to file an answer in this case because the Housing is Key program had approved defendant’s application and would pay all of his back rent owed.  [Asadorvan Decl., para.  3].  Defendant was also told that once plaintiff was paid, the lawsuit would go away, and that defendant should not worry about it. [Id.].  Defendant indicates that he applied for and was accepted for the Housing is Key program, and so plaintiff will be paid all of the back rent owed, which would then make defendants up to date on all outstanding balances in connection with the subject premises.   [Asadorvan Decl., para. 4].  Plaintiff indicates he had never been through this process and did not know what was required of him until he obtained a Sheriff’s Lock-Out Notice, at which point defendant immediately sought help from a lawyer specializing in housing litigation and unlawful detainer actions. [Asadorvan Decl., para. 5].  Defendant indicates he is an Armenian refugee, new to the civil justice system, and relied on the legal advice of an attorney who does personal injury only.  [Asadorvan Decl., para. 6].  

The writ of possession was issued on July 13, 2022, and the motion for relief was filed on August 8, 2022, which was likely fairly promptly after the writ of possession was attempted to be executed.  

A party seeking relief under section 473 on the ground of excusable neglect bears the burden of demonstrating that the neglect was excusable in order to secure relief.  See Cochran v. Linn (1984, 2nd Dist.) 159 Cal.App.3d 245, 252. 

The test of whether neglect was excusable is “whether a reasonably prudent person under the same or similar circumstances might have made the same error.”  Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276, quotation, citation omitted; Austin v. Los Angeles Unified School Dist. (2016, 2nd Dist.) 244 Cal.App.4th 918, 929 (“Within the context of section 473(b) neglect is excusable if a reasonably prudent person under similar circumstances might have made the same error.”).      

The trial court’s granting or denial of relief under this provision is reviewed for abuse of discretion.   State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.   

Here, the argument is essentially that defendants relied on the advice of an attorney who had no expertise in unlawful detainer or landlord-tenant law that defendants’ successful application for funds under a government program to be applied toward rent would satisfy the landlord, and the action would not need to be defended.  There is no affidavit of the attorney confirming or accepting responsibility for this mistake.  However, it would appear that even setting aside the advice of counsel, it was not unreasonable for tenants to believe that the approval of funds for rent to be paid to the landlord would satisfy the landlord, particularly in recent circumstances where there have been well publicized temporary moratoriums on evictions, and where the tenants evidently went to some trouble to apply for and secure the available funds from the government.

Plaintiff in opposition argues that the payments from the rental assistance program do not render invalid one of the three notices, because unpaid rent for April of 2022 is not protected under the statutes pertaining to COVID-19 recovery period rental debt.  This argument appears to concede that two of the notices upon which the complaint and judgment were based were in fact rendered invalid under the circumstances and reinforces the reasonableness of any understanding on the part of the tenants that the lawsuit would not proceed once the applied for funds were provided to the landlord.  

The court finds that the default and default judgment were entered due to mistake and/or excusable neglect. The court exercises its discretion to set aside the judgment, default, and the writ of possession issued based on the judgment.

This action is in keeping with the preference for permitting the adjudication of legal controversies on their merits.   

Plaintiff in opposition requests that, if the court grants the relief requested, plaintiff be awarded compensatory attorney’s fees and court costs.  

As noted above, under CCP § 473(b), the court may grant relief “upon any terms as may be just…”

Under CCP § 473(c)(1): “Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following:

(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.

(C) Grant other relief as is appropriate.”

In Jade K. v. Viguri (1989) 210 Cal.App.3d 1459, the court of appeal, applying an earlier version of CCP § 473, held:

“Section 473 permits the court to grant relief “upon such terms as may be just.” The court may properly order payment of costs or attorney fees to the adverse party as compensation for loss or expense occasioned by the granting of the section 473 motion. (Hearst v. Ferrante (1987) 189 Cal.App.3d 201, 204 [234 Cal.Rptr. 385]; Hansen v. Snap-Tite, Inc. (1972) 23 Cal.App.3d 208, 213 [100 Cal.Rptr. 51].)”

Jade K., 1474. 

Here, plaintiff in opposition submits a declaration of counsel indicating that attorney’s fees were incurred at the rate of $400 per hour to prepare opposition to the motion to set aside and the declaration ($450) and to appear at the ex parte hearing concerning setting aside the default ($570).   [Cardoso Decl., para. 14].  This is a total of $1,020, but the moving papers seek only $1,000 in fees.   

Plaintiff’s counsel also indicates that the following costs were incurred:

E-filing Fee on Notice of Continued CMC $11.52

E-filing Fee on Default Package 7/12/2022 $12.72

E-filing Fee on Default Package 7/13/2022 $12.72

Writ of Possession Filing Fee $40.00

E-filing Fee on Opposition to Defendant’s Set Aside Motion 6/24/2022 $11.52

Sheriff’s lockout fee $145.00

TOTAL COURT COSTS $220.76

[Cardoso Decl., para. 14].  

These expenses appear to have been all incurred due to the failure of defendants to respond to the complaint, so that the matter proceeded by default, and those expenses will essentially have been unnecessarily incurred due to the granting of relief to defendants.  The expenses appear reasonable.  The fees and costs are awarded as requested.   

RULING:

Motion for Relief from Default Judgment is GRANTED.  The default entered July 13, 2022, and the default judgment entered July 13, 2022, as to moving defendants Rimond Asadoryan and Lernik Khajehsari are vacated pursuant to CCP § 473(b), based on moving parties’ mistake and/or excusable neglect.   The court also vacates and quashes the writ of possession issued in this matter on July 13, 2022.  

Defendants are ordered to efile a separate signed copy of the Answer to Plaintiff’s Complaint submitted as Exhibit 1.0 by close of business this date, and the answer will be deemed served upon filing. 

Pursuant to CCP § 473(b) and (c)(1), the Court awards to plaintiff the reasonable fees and costs to pursue the default judgment and enforcement of the judgment, and oppose this motion, which the Court finds were occasioned by the granting of this motion based on defendants’ mistake and/or excusable neglect, in the sum of $1,220.76 [$1,000 attorney’s fees, $220.76 costs requested]. 

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