Judge Randy Rhodes, Case 21CHCV00539 2023-02-27 Tentative Ruling

Judge: Randy Rhodes, Case: 21CHCV00539, Date: 2023-02-27 Tentative Ruling

Case Number: 21CHCV00539 Hearing Date: February 27, 2023 Dept: F51

Dept. F-51¿¿

Date: 2/27/23¿

Case #21CHCV00539

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MOTION TO VACATE/SET ASIDE DEFAULT JUDGMENT

Motion Filed: 11/23/22

MOVING PARTY: Defendant Rayne Water Conditioning, Inc. (“Moving Defendant”)

RESPONDING PARTY: Plaintiffs Daniel S. Wallis and Diane L. Wallis (in pro per) (collectively, “Plaintiffs”)

NOTICE: OK¿

RELIEF REQUESTED: An order vacating the default judgment entered against Moving Defendant on 7/13/22.

TENTATIVE RULING: The motion is granted.

Moving Defendant is reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

BACKGROUND

On 1/1/18, Plaintiffs allegedly entered into an oral agreement with defendants Culligan International Company (“Culligan”) and Moving Defendant (collectively, “Defendants”). (FAC ¶ 9.) Under the oral agreement, Defendants were to provide Plaintiffs with a residential watering system, and would “install, service, and maintain the house water system on a monthly basis.” (Id. at ¶¶ 9–10.) Defendants also allegedly “represented to Plaintiffs, that the water system would be free from defects, leaks, and to be in good working condition at all times” by inspecting the system on a monthly basis and making necessary repairs as needed. (Id. at ¶ 11.) In exchange, Plaintiffs paid Defendants a monthly service fee of $132.00. (Id. at ¶ 10.) On or about 7/15/20, Defendants allegedly breached the agreement by “failing to install, service, … maintain,” “inspect, analyze, and repair” the water system. (Id. at ¶¶ 15–16.)

On 7/21/21, Plaintiffs filed their complaint alleging against Defendants the following causes of action: (1) Breach of Contract; and (2) Negligence. On 5/2/22, Culligan filed a demurrer and motion to strike Plaintiffs’ complaint as to their first cause of action. The hearing was placed off-calendar as the parties stipulated for Plaintiffs to file a first amended complaint (“FAC”).

On 7/29/22, Plaintiffs filed their FAC, alleging against the same Defendants the same causes of action for: (1) Breach of Contract; and (2) Negligence.

On 7/13/22, the Court clerk entered default as against Moving Defendant. On 11/23/22, Moving defendant filed the instant motion to set aside the 7/13/22 entry of default.

ANALYSIS

Moving Defendant requests relief from the entry of default against it under Code of Civil Procedure section 473, subdivision (b). Under the statute, “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.” (Code Civ. Proc. § 473, subd. (b).) A mistake warranting relief is one that might have been made by a reasonably prudent person in the same circumstances. (Dingwall v. Vangas, Inc. (1963) 218 Cal.App.2d 108, 113.)

Here, Moving Defendant argues that its specific franchise location was mistakenly named in Plaintiffs’ complaint, and that the president of Moving Defendant was told by Moving Defendant’s parent company that it would remove Moving Defendant from the instant litigation, and therefore took no further action in litigating the case until receiving service of the 7/13/22 Request to Enter Default. Moving Defendant further alleges that its counsel spoke with plaintiff Daniel Wallis via telephone to discuss the misjoinder, but the issue had not yet been resolved as of the date of the instant motion.

While reliance on a third person to “take care of the matter” does not generally establish excusable neglect, the Court notes that the instant action involves a potential misjoinder of a party not affiliated with the conduct alleged by Plaintiffs. (Davis v. Thayer (1980) 113 Cal.App.3d 892, 909–910.) A reasonably prudent person under these circumstances may have similarly failed to litigate the action as a result of the same mistaken assumption.

Based on the foregoing, the Court exercises its discretion under Code of Civil Procedure section 473, subdivision (b) to grant Moving Defendant’s unopposed motion to set aside the 7/13/22 default entered against it.

“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.” (Code Civ. Proc. § 473, subd. (b).) Here, the instant motion was filed within 6 months after default judgment was entered against Moving Defendant. The motion is accompanied by a notice thereto, as well as Moving Defendant’s proposed answer in response to Plaintiffs’ complaint.