Judge Randolph M. Hammock, Case Number: 23STCV13279, Date: 2024-04-12 Tentative Ruling

Judge: Randolph M. Hammock, Case: 23STCV13279, Date: 2024-04-12 Tentative Ruling

Plaintiff 8020 Melrose Avenue, LLC, brings this action against Defendants Marlon Dumlao, Bernadette Bernardo, and The LA Art Box, LLC, seeking damages based on alleged unpaid rent for a commercial property.

Under the discretionary provisions of 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 mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) To obtain relief under this provision, the application for relief must be made “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding.” (Ibid.) This type of application must also be “accompanied by a copy of the answer or other pleading proposed to be filed therein.” (Ibid.)

For relief to be warranted, any mistake must be something other than professional incompetence or ignorance of the law. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.) The term “surprise” refers to “some condition or situation in which a party is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” (Ibid., internal quotations omitted.) Similarly, to be excusable, a litigant’s inadvertence or neglect must have been “such as might have been the act of a reasonably prudent person under the same circumstances.” (Ibid.)

Plaintiff filed this lawsuit on June 09, 2023. (See 06/09/2023 Complaint). On September 14, 2023, and October 6, 2023, the clerk entered the defaults of Defendants Dumlao and Bernardo, respectively.

In support of their motion to set aside the defaults, Defendants present the following scenario. On July 29, 2023, Defendant Dumlao was personally served with the summons and complaint. (Dumlao Decl. ¶ 4.) Having “never been sued before or served with anything like this,” he “immediately called contacted Bernadette and emailed the in-house attorney for The LA Art Box, Matthew Janda.” (Id. ¶ 4; Bernardo Decl. ¶ 4.)

As LA Art Box’s in-house attorney, Janda “had some communications with Plaintiff prior to this lawsuit,” and then further “contact with Plaintiff’s attorney in an attempt to informally resolve the issues raised in the lawsuit.” (Dumlao Decl. ¶ 6.) Dumlao and Bernardo “trusted that [Janda] would appropriately handle” the lawsuit and “loop [them] in when needed.” (Id. ¶ 5, 6; Bernardo Decl. ¶ 5). Bernardo authorized Janda to accept service of the summons and complaint on her behalf, although she “did not fully understand what this meant.” (Bernardo Decl. ¶ 7.)

On September 14, 2023, Dumlao was surprised to receive the “Request for Entry of Default” in the mail, since “[n]either [he] nor Mr Janda [ever] received any contact from Plaintiff’s counsel that they intended to file a Request for Entry of Default.” (Id. ¶ 7.) Once receiving the Request for Entry of Default, Dumlao “reached out to Mr. Janda for guidance.” (Id. ¶ 8.) Janda advised him that “he would not be able to assist in the litigation… and that he might be able to provide [him] with a referral.” (Id.)

At this point, Dumlao “decided to reach out to [his] long-time friend from UCLA, Jose Mendoza,” an attorney who “specializes in litigation.” (Id.) On September 20, 2023, Mendoza reached out to Plaintiff’s attorney “to again attempt to resolve this matter.” (Id. ¶ 8.) This initiated discussions about settling the case, and Mendoza asked Plaintiff for a settlement demand. (Id.)

Mendoza has also submitted a declaration in support of the motion. He confirms he “agreed to informally help [Dumlao] try and get the case resolved with Plaintiff’s counsel” beginning in September of 2023. (Mendoza Decl. ¶¶ 4, 5.) When Mendoza communicated with Plaintiff’s counsel, Paul Levine, Levine “expressed a mutual desire to resolve the case informally,” and told Mendoza that “he would get [him] a settlement demand.” (Id. ¶ 5.) Through the end of September through January 16, 2023, Mendoza “followed up with Mr. Levine at least 5 times by phone and 9 times by email, asking for a settlement demand.” (Id. ¶ 6.) After each request, Mendoza “was told by Mr. Levine that a demand would be forthcoming.” (Id. ¶ 7.)

Plaintiff did not offer a settlement demand until “late February 2024.” (Id. ¶ 8.) The settlement demand was “not acceptable,” and with the 6-month deadline to set aside their defaults approaching, Mendoza asked if Plaintiff would stipulate to set aside the defaults. (Id.) On or about February 29, 2024, Levine informed Mendoza emailed “that his client would not stipulate to set aside the defaults.” (Id. ¶ 9.) At this point, Mendoza referred the Defendants to Jonathan Golding, Defendants’ current counsel. (Id. ¶ 11.) On March 13, 2024, Defendants filed the instant motion to set aside their defaults.

Plaintiff opposes the motion. Plaintiff argues Defendants have not presented sufficient evidence that they failed to set aside their defaults based on “mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) In essence, Plaintiff argues Defendants knowingly allowed their defaults to be entered and then failed to move to set them aside with any reasonable diligence. Plaintiff has not submitted any of its own evidence with the motion.

Here, considering the undisputed evidence, Defendants have demonstrated relief from their defaults is warranted based on “mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) From the time of service, the Defendants worked with multiple attorneys in an attempt to resolve the matter. Based on hopes of an informal resolution, Defendants repeatedly requested a settlement demand, which Plaintiff delayed in providing.

Once it became clear that a settlement was unlikely, and with the 6-month deadline to set aside the defaults looming, [FN 1] Defendants filed this motion.

In other words, this is not a case where Defendants’ ignored the lawsuit against them and failed to exercise their rights. Rather, they utilized two attorneys, even if somewhat informally, to communicate with Plaintiff before and after the filing of the lawsuit. Indeed, it is undisputed that settlement negotiations were ongoing at the time Plaintiff obtained Defendants’ defaults. It is also worth noting that Plaintiff apparently never informed Defendants it was taking their defaults.

While it may have been ill-advised for Defendants to delay in seeking relief for as long as they did, they have at least presented a justification for that delay. Importantly, Plaintiff has not demonstrated it will suffer any undue prejudice if the defaults are set aside at this time.

This court will therefore exercise its discretion to set aside the defaults. “Because the law favors disposing of cases on their merits, ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations]. (Austin v. Los Angeles Unified Sch. Dist. (2016) 244 Cal. App. 4th 918, 929.)

Judge of the Superior Court

FN 1 - Defendant Dumlao’s default was entered on September 14, 2023, approximately three weeks before Defendant Bernardo’s default. Therefore, Dumlao had until March 14, 2023, to seek relief under section 473(b). (See (CCP § 473(b) [providing that any motion for relief under this section must be made “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding”].) Because Defendants filed their motion on March 13, 2024, it was timely, albeit by only a single day.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.