Judge Robert B. Broadbelt, Case Number: 21STCV31439, Date: 2023-10-19 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 21STCV31439, Date: 2023-10-19 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

The court considered the moving and opposition papers filed in connection with the motion to set aside default judgment. No reply papers were filed in connection with that motion.

The court considered the moving, opposition, and reply papers filed in connection with the motion for sanctions.

Cross-defendant Daisy Maria Petitte (“Cross-Defendant”) moves the court for an order setting aside the default judgment entered against her and in favor of cross-complainant Tara Black (“Cross-Complainant”) on March 13, 2023. Defendant moves for this relief pursuant to Code of Civil Procedure sections 473, subdivision (b), and 473.5, on the ground that Defendant and Defendant’s counsel inadvertently failed to re-calendar the motion to quash service of summons after it was vacated.

Code of Civil Procedure section 473, subdivision (b) “includes a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.”¿ (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25.)¿ The discretionary relief provision provides that “[t]he 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 motion requesting this relief “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Ibid.)

The mandatory provision provides that “the court shall, whenever an application for relief is made no more than six months after the 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 a 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.” (Code Civ. Proc., § 473, subd. (b).) “The statute’s ‘broad remedial provisions’ [citation] are to be ‘liberally applied to carry out the policy of permitting trial on the merits’ [citation]. The party seeking relief, however, bears the burden of proof in establishing the right to relief.” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 [internal citations omitted].) Similarly, “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.” (Code Civ. Proc., § 473.5, subd. (a).)

First, the court finds that Cross-Defendant has not met her burden to show that she is entitled to relief under Code of Civil Procedure section 473, subdivision (b).

As a threshold matter, the court notes that Cross-Defendant does not appear to be moving for relief pursuant to the mandatory provision of section 473, and instead requests that the court exercise its discretion to grant relief. (Mot., p. 6:2-25 [quoting discretionary provision and stating that “Counsel’s inadvertent mistake was entirely excusable”].) Cross-Defendant argues that her default was entered as “a result or consequence of an innocent misstep in failing to reinstate the motion on the new court’s calendar after the case was transferred to an entirely different court and all hearings were vacated.” (Mot, p. 6:22-24.) Cross-Defendant further contends that this mistake was excusable. The court disagrees.

Relief under the discretionary provision of section 473 is available when “a judgment, dismissal, order, or other proceeding [is] taken against [a party] through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b) [emphasis added].) Here, although Cross-Defendant asserts that default was taken against her because of counsel’s failure to re-calendar the motion to quash, the court record reflects otherwise. Cross-Defendant filed her motion to quash service of summons on December 22, 2021, but that was after the clerk entered default against Cross-Defendant, on December 14, 2021. The motion to quash service of summons did not request that the court set aside the default. (Dec. 22, 2021 Motion to Quash.) Thus, Cross-Defendant’s default and subsequent default judgment were not “taken against [her] through [Cross-Defendant or Cross-Defendant’s counsel’s] mistake, inadvertence, surprise, or excusable neglect” in failing to reschedule for hearing the motion to quash. (Code Civ. Proc., § 473, subd. (b).) Instead, default was entered due to her failure to timely file a response to the Cross-Complaint. The court also notes that, on February 24, 2022, the court ordered Cross-Defendant’s motion to quash was “stricken because Cross-Defendant was in default at the time the motion was filed.”[1] (Feb. 24, 2022 Minute Order, p. 1; Feb. 24, 2022 Nunc Pro Tunc Order, p. 1.)

Even if the court accepted Cross-Defendant’s argument that her counsel’s failure to reschedule the hearing on the motion to quash service of summons led to Cross-Defendant’s default, the court would find that Cross-Defendant has not shown that such conduct constitutes excusable neglect, inadvertence, mistake, or surprise.

“In determining whether the attorney’s mistake or inadvertence was excusable, the court inquires whether a reasonably prudent person might have made the same mistake under the same or similar circumstances.” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229.) “Mistake is not a ground for relief under section 473, subdivision (b), when the court finds that the mistake is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law . . . . [Citation.] Further, [t]he term ‘surprise,’ as used in section 473, 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. [Citation.]” (Id. at pp. 229-230 [internal citations omitted] [internal quotations omitted].)

The court acknowledges that, in his declaration, Cross-Defendant’s counsel asserts that, after the hearings on all motions were vacated upon reassignment to an independent calendar court, counsel mistakenly and inadvertently failed to ensure that her motion was reset for hearing. (Castillo Decl., ¶ 5.) However, Cross-Defendant did not present evidence (1) explaining why counsel did not, after this matter was assigned to this court on January 18, 2022, refile this motion or a motion to set aside the default, or (2) justifying the delay in moving for relief, given that (i) the clerk entered default against Cross-Defendant on December 14, 2021, (ii) counsel for Cross-Defendant knew, as of July 11, 2022, that Cross-Complainant would not stipulate to set aside the default, but (iii) Cross-Defendant did not request relief from default until Cross-Defendant filed her first motion to set aside the default and default judgment on June 9, 2023. (Castillo Decl., ¶ 6; Castillo Decl., Ex. C; Hopkins, supra, 200 Cal.App.4th at p. 1410 [party seeking relief pursuant to section 473 “must show diligence in making the motion after discovery of the default”].) Thus, the court finds that Cross-Defendant has not shown that any failure to reschedule the hearing on her motion to quash service of summons was the mistake or inadvertence that “a reasonably prudent person” would have made “under the same or similar circumstances.” (Henderson, supra, 187 Cal.App.4th at p. 229.) The court therefore finds that Cross-Defendant has not shown that counsel’s conduct was excusable. (Ibid.)

The court therefore finds that Cross-Defendant has not shown that she is entitled to relief under Code of Civil Procedure section 473, subdivision (b) because she has not presented evidence showing that her default and default judgment were taken against her because of her or her counsel’s mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b); Hopkins, supra, 200 Cal.App.4th at p. 1410.)

Second, the court finds that Cross-Defendant has not met her burden to show that she is entitled to relief under Code of Civil Procedure section 473.5.

Although Cross-Defendant has argued that she was not served with the summons and cross-complaint in compliance with the Code of Civil Procedure, she has not presented any competent evidence of that fact. She has not, for example, submitted a declaration establishing that she was never served therewith. Moreover, a party is entitled to set aside the default or default judgment pursuant to this statute “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action . . . .” (Code Civ. Proc., § 473.5, subd. (a).) Here, it is undisputed that Cross-Defendant had actual notice of the action by as of, at the latest, December 22, 2021 (i.e., the date on which Cross-Defendant filed the motion to quash service of summons), and Cross-Defendant has not submitted evidence establishing that she did not receive notice “in time to defend the action” as required. (Ibid.)

Third, the court finds that Cross-Defendant has not shown that she is entitled to an order vacating the default and default judgment pursuant to the court’s inherent equitable powers.

The court therefore finds that Cross-Defendant has not met her burden to show that the default judgment entered against her and in favor of Cross-Complainant on March 13, 2023 should be set aside. (Code Civ. Proc., §§ 473, subd. (b), 473.5.)

Cross-Complainant moves the court for an order awarding monetary sanctions in favor of Cross-Complainant and against Cross-Defendant in the amount of $4,811.65 pursuant to Code of Civil Procedure section 128.7.

Code of Civil Procedure “[s]ection 128.7 applies only in limited circumstances. It ‘authorizes trial courts to impose sanctions to check abuses in the filing of pleadings, petitions, written notices of motion or similar papers.’ [Citation.] Under that authority, trial courts may issue sanctions, including monetary and terminating sanctions, against a party for filing a complaint that is legally or factually frivolous.” (Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1120 [internal citation omitted].) “A claim is factually frivolous if it is ‘ “not well grounded in fact” ’ and it is legally frivolous if it is ‘ “not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” [Citation.]’ [Citation.] ‘In either case, to obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable. [Citation.] A claim is objectively unreasonable if “any reasonable attorney would agree that [it] is totally and completely without merit.” [Citation.]’” (McCluskey v. Henry (2020) 56 Cal.App.5th 1197, 1205 [internal citation omitted].) Sanctions under this section “may consist of, or include, directives of a nonmonetary nature . . . .” (Code Civ. Proc., §¿128.7, subd. (d).)

The court finds that Cross-Complainant has not met her burden to show that sanctions pursuant to Code of Civil Procedure section 128.7 are warranted. Although the court agrees that Cross-Defendant is not entitled to the relief requested in her motion for the reasons set forth above, the court does not find that the claims presented therein are objectively unreasonable. (Kumar, supra, 71 Cal.App.5th at p. 1120.) Further, even if Cross-Complainant had shown that the claims were frivolous, the court would exercise its discretion to deny sanctions. (Code Civ. Proc., § 128.7, subd. (c) [“the court may . . . impose an appropriate sanction” if section 128.7, subdivision (b) has been violated].)

The court denies Cross-Defendant’s request for monetary sanctions in the amount of $6,500, as requested in opposition.

The court denies cross-defendant Daisy Maria Petitte’s motion to set aside default judgment.

[1] For the same reason, even if Cross-Defendant had moved for relief under the mandatory provision of section 473, the court would still deny the motion because the court would find that the default and default judgment entered against Cross-Defendant was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. (Code Civ. Proc., § 473, subd. (b).)

geovanni rodriguez , et al.; Plaintiffs, vs. tara black , et al.; Defendants.	Case No.:	21STCV31439

	Hearing Date:	October 19, 2023

	Time:	10:00 a.m.

	[Tentative] Order RE: (1) cross-defendant’s motion to set aside default judgment (2) cross-complainant’s motion for sanctions