Judge Ralph C. Hofer, Case Number: 23GDCV01759, Date: 2024-01-19 Tentative Ruling

Plaintiff Yolanda Hall alleges that in May of 2018 plaintiff entered into a residential lease agreement with defendants Wayne Hazle and Mary Ellen Hazle to occupy premises in Glendale, and has at all times satisfied her lease and has been in lawful possession of her apartment. Plaintiff alleges that the tenancy is subject to the Tenant Protection Act of 2019.

Plaintiff alleges that plaintiff has been living in the back room/garage of defendants’ property as specified in the Lease Agreement, but that the premises were not permitted to be safe, inhabitable, or livable during plaintiff’s tenancy from May of 2018 to May of 2023, and that plaintiff was not aware that the property was not permitted until recently. The complaint alleges that there were additional issues of habitability from mold, water damage, unsafe wiring and cables, and unsafe common areas that developed after plaintiff moved in, that plaintiff provided notices to defendants regarding the issues, but the issues were not rectified. Plaintiff alleges that she has been exposed to numerous health and safety issues, and as a result has suffered severe physical and emotional distress, and ultimately had no choice but to relocate to a hotel.

The file shows that on August 30, 2023, the court signed and filed two Orders for Publication, for each of the defendants, ordering that service of the summons and complaint be made on defendants by publication in the Daily Journal for once a week for four successive weeks, and that a copy of the summons and complaint be mailed to defendants if their address is ascertained before expiration of the time prescribed for publication.

On November 2, 2023, defendants filed Defendants’ Answer to Plaintiff’s Complaint, which was accepted for filing despite default having previously been entered against the answering defendants.

On November 21, 2023, the court heard an ex parte application for an order shortening time to hear a motion for relief from entry of default and any default judgment, which was granted, and the hearing on the motion for relief set for January 19, 2023. The minute order indicates that the court would not rule on plaintiff’s request for default judgment prior to the hearing on defendants’ motion for relief from entry of default, and plaintiff was not permitted to resubmit a default package until the January 19, 2023 hearing.

Plaintiff recognizes that the proof of service of the motion indicates that the motion was served by both email and personal service. The proof of service states that service was also made “BY PERSONAL SERVICE,” by the declarant delivering the document to an attorney service to have the document personally served.

Plaintiff in the opposition argues that there is no proof of service from the third party, and that plaintiff and plaintiff’s counsel were not personally served as represented on December 26, 2023.

Defendants in reply point out that plaintiff has submitted no evidence or declarations in support of the opposition, so there is no evidence before the court that personal service was not made as represented. Defendants submit with the reply a copy of a proof of service from a registered California process server attesting that personal service of the moving papers was made on December 26, 2023 to plaintiff’s counsel’s law office at 3:48 PM. [Morgenthaler Declaration in Support of Reply, Ex. B].

The return here indicates timely personal service was effected, and the presumption arises that the facts stated in the return are true. As noted above, plaintiff has failed to submit any evidence in support of the opposition, so has failed produce evidence rebutting the facts stated. The service was accordingly made as represented, the motion was made on sufficient notice, and the motion will not be denied on this ground.

Defendants seek relief under the mandatory provisions of CCP § 473(b) or based on irregularities in the service by publication or based on defendants’ failure to have had actual notice of the lawsuit prior to the entry of default.

“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..”

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.

“On or about October 20, 2023, I was retained by Defendants to represent them in their settlement negotiations with plaintiff Yolanda Hall (“Plaintiff”) and her counsel, Sarkissian Law Group, including preparing a letter to Sarkissian Law Group setting forth a counteroffer to Plaintiff. When I was retained, Defendants provided me with information on the background and status of the dispute and the status of their settlement negotiations with Plaintiff and Sarkissian Law Group. Based on the information provided to me by Defendants (the substance of which is protected by the attorney-client privilege), I accepted Defendants’ assessment of the status of the dispute and did not investigate myself whether it was possible that Plaintiff had already filed a complaint herein when I was retained. In retrospect, this failure to investigate was a mistake. If I had done such investigation, Defendants would have been able to file their Answer prior to October 31, 2023.”

The only question remaining under this provision is whether the resulting default 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 appears from the declaration and the file that if counsel had investigated and checked the court records promptly once counsel was retained, counsel would have been on notice that an answer was due to be filed, and defendants would have had the opportunity to file an answer before default was entered on October 31, 2023.

The opposition does not address this argument but focuses on arguing that plaintiff appropriately obtained an order for service of the summons and complaint by publication, based on defendants’ purported avoidance of service. Again, plaintiff has failed to submit any evidence or declarations in support of the opposition.

There is accordingly no argument or facts referenced which would suggest that the attorney’s conduct here did not in fact result in the entry of default against defendants. Had a timely answer been filed, the default could not have been entered. This situation is not a case where, for example, the clients had some part in the neglect or mistake, and counsel is covering up for other wrongdoing. The relief, therefore, is granted under the mandatory provision.

As noted above, plaintiffs filed an Answer to the Complaint on November 2, 2023, after default had been entered on October 31, 2023. This answer was accepted for filing despite the fact that default had already been entered. The court accordingly orders that the Answer filed on November 2, 2023 be stricken, and order plaintiffs to file and serve an Answer to the complaint in substantial conformity with the previously filed Answer. See Los Angeles County v. Lewis (1918) 179 Cal. 398, 400.

Defendants’ Motion to Set Aside Entry of Default, or in the Alternative, for Relief from Entry of Default is GRANTED based on the mandatory provisions of CCP section 473(b) based on the attorney’s affidavit of fault.

Defendant is ORDERED to efile this date and serve on the current parties defendants’ Answer to Plaintiffs’ Complaint, which should be in substantial conformity with the Answer previously filed on November 2, 2023. The Answer to Plaintiff’s Complaint, erroneously accepted for filing on November 2, 2023, is ordered STRICKEN.

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