TENTATIVE RULING

Calendar: 8

Date: 1/13/2023

Case No: 22 GDCV00577

Case Name: Bacurin v. Estate of Leonora L. Bacurin, Deceased, et al.

MOTION TO SET ASIDE DEFAULT

Moving Party: Defendant Luis L. Bacurin 

Responding Party: Plaintiff Virginia L. Bacurin (No Opposition)   

VACATE OR SET ASIDE:

Default (Entered on October 13, 2022)

 FACTUAL AND PROCEDURAL BACKGROUND: 

Plaintiff Virginia L. Bacurin brings this action against defendant Luis Bacurin, her brother, and the estates of her two sisters, defendant Estate of Adelaida L. Bacurin, and defendant Estate of Leonora L. Bacurin, alleging that real property in Glendale is now being held by defendant Luis Bacurin as the current, purported sole owner of record by means of an Affidavit of Death of Joint Tenant (Adelaida Bucurin), which was recorded in April of 2022. 

Plaintiff alleges that in April of 2008, plaintiff acquired an equal ownership interest in joint tenancy in the property with her sister Adelaida, and has since then been paying, to date, the mortgage, insurance and real property taxes relating to the property, but the other siblings have engaged in fraud or mistake by conveying the property to the three siblings in joint tenancy, while promising that plaintiff would remain an owner of record and would be added onto title.  The complaint seeks reformation of the April 2022 Deed to express the intention of plaintiff and defendants to include plaintiff as titleholder to the property with her siblings. 

The file shows that on October 13, 2022, plaintiff filed a Request for Entry of Default as to defendant Luis Bacurin, which was entered as requested the same date. 

Several hours later on the same date, October 13, 2022, defendant Luis Bacurin filed an Answer to Complaint for Reformation, which was accepted for electronic filing. 

On December 1, 2022, the court found that this case was related to a pending case, 22 PDUD00700, ordered the UD case assigned to this Department, and deemed this case the lead case.  

Defendant Luis Bacurin seeks to set aside the default that was entered in this case, and to deem the answer filed. 

ANALYSIS:

Defendant Luis Bacurin seeks relief under the mandatory provisions of CCP § 473(b), or, in the alternative, relief based on the discretionary provisions of CCP section 473 (b), based on mistake, inadvertence or excusable neglect.  

Defendant’s counsel indicates that counsel was retained by defendant specifically for this landlord-tenant dispute in April of 2022, and was supposed to monitor this matter and respond to any paperwork delivered to his office or served on the client, but that at that time defendant had not been personally served with the summons and complaint, as the client did not personally receive a full copy of the summons and complaint, and did not receive any service by mail.  [Marinaccio Decl., paras. 4, 5].  Counsel for defendant began contacting counsel for plaintiff asking for the date of alleged service and extension of time to file an answer, to which there was no response, and also telephoned counsel for plaintiff on the morning of October 13, 2022, leaving a lengthy voicemail that an answer would be filed that afternoon.  [Marinaccio Decl., paras. 6-8,  Exs. A, B].   The file shows that the Request for Default was filed at 1:28 pm, and the Answer was filed at 4:04 pm.   

While the declaration appears to place some blame for the problems on counsel for defendant, and the purported lack of proper service, the declaration does acknowledge that it was counsel’s office’s responsibility “to monitor this matter and of course respond to any paperwork delivered to my office or served on my client.”  [Decl., para. 5].  The declaration states:

“11.  I assert that due to mistake, inadvertence and excusable neglect, my office failed to file and (sic) answer to the complaint. 

12. I further assert that my own mistake, inadvertence, surprise, or neglect, I failed to ensure that an answer to the complaint was filed in a timely manner.”

[Marinaccio Decl., paras. 11, 12].  

Defendant seeks mandatory relief under CCP § 473(b), which provides, in pertinent part:

“Notwithstanding any other requirement of this section, the court shall, whenever an application 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 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..”

This relief is mandatory, even where the attorney’s neglect is inexcusable.   Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1604-1605.    

Unlike the discretionary provision, there is no diligence requirement in this portion of the statute, as the Second District has observed that the 1988 amendments to the mandatory relief section removed the word “timely” from the statute, which effectively removed any diligence requirement as long as the motion was filed “no more than six months after entry of judgment.”  See Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 868 

Here, there has been no judgment entered, so the motion is timely.  In any case, the motion was filed on December 15, 2022,  after default was entered on October 13, 2022, with a lapse of just over two months, during which counsel indicates that he was attempting to obtain a stipulation to have the default set aside.  [Decl., para. 10]. 

The declaration appears to sufficiently take responsibility for the mistake or neglect and includes a statement under oath attesting to the attorney’s “own own mistake, inadvertence, surprise, or neglect,” as required under the mandatory provision.  The motion is accompanied by a proposed answer, so appears to be in proper form. 

However, the answer is evidently a copy of the answer already filed, which has not yet been stricken.  The court, on its own motion pursuant to CCP section 446, orders the answer filed on October 13, 2022 stricken as not filed in conformity with the laws of this state, because it was improperly accepted for filing when a default had already been entered.  (See CCP§ 436 (“The court may…at any time in its discretion, and upon terms it deems proper:…(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”)).

 

A new clean copy of the answer without the heading including the previous filing date is required to be filed by defendant. 

The only question remaining under CCP section 473 (b) is whether the resulting dismissal entered against the client was “in fact, caused by the attorney’s mistake, inadvertence, surprise or neglect.”  CCP section 473(b). A trial court’s finding on the causation issue will be upheld on appeal so long as it is supported by substantial evidence.   Milton v. Perceptual Development Corp. (1997, 2nd Dist.) 53 Cal.App.4th 861, 867. 

It would appear that the declaration sufficiently supports a finding that the default was entered after counsel had been retained by the client to protect defendant’s interests in this matter, and that had counsel appropriately filed an answer or timely filed a motion to quash service of summons, the default would have been avoided.  This circumstance does not appear to be a case where, for example, the client had some part in the neglect, and counsel is covering up for other wrongdoing.  The relief, therefore, is granted under the mandatory provision. 

Plaintiff has not filed a timely opposition to this motion, so there does not appear to be any reason to deny the relief requested.  

The motion is granted, and the default is set aside. 

RULING:

[No Opposition]

The Court on its own motion pursuant to CCP section 446 orders that the Answer to Complaint for Reformation filed on October 13, 2022 is stricken as not filed in conformity with the laws of this state, because it was improperly accepted for filing when a default had already been entered. 

 

Defendant’s UNOPPOSED Motion to Set Aside Default is GRANTED based on the mandatory provisions of CCP section 473(b) based on the attorney’s affidavit of fault showing the attorney’s mistake, inadvertence, surprise, or neglect. 

Default entered on October 13, 2022 is VACATED and SET ASIDE. 

Defendant is ORDERED to efile a separate signed clean copy of defendant’s Answer (which does not include the previous filing information), tracing the attachment Exhibit 1 to the motion, and the Answer is deemed served on the currently appearing parties upon efiling. 

GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.