Judge: Robert B. Broadbelt, Case: 21STCV31551, Date: 2023-01-10 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.

Case Number: 21STCV31551    Hearing Date: January 10, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Plaintiff Bellflower First Plaza, LLC

RESPONDING PARTIES:    Defendants Lisa Mirizzi and Giovanni & Son, LLC

Motion to Set Aside 10/21/2022 Order

The court considered the moving and opposition papers filed in connection with this motion.  No reply papers were filed.

REQUEST FOR JUDICIAL NOTICE

The court grants Defendants’ request for judicial notice. 

DISCUSSION

On October 21, 2022, the court granted the unopposed motion to set aside void judgment and quash service of summons filed by defendants Giovanni & Son, LLC, and Lisa Mirizzi (“Defendants”), and ordered that (1) the defaults entered against Defendants on October 27, 2021 are set aside, and (2) the default judgment entered against Defendants on January 3, 2022 is set aside.

Plaintiff Bellflower First Plaza, LLC (“Plaintiff”) now moves, pursuant to Code of Civil Procedure section 473, for an order setting aside the court’s October 21, 2022 order on the ground that Plaintiff was never served with Defendants’ moving papers, and therefore was unable to file an opposition to their motion.

“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).) 

The court finds that Plaintiff has met its burden of establishing that the court’s October 21, 2022 order was taken against Plaintiff through its surprise and therefore grants Plaintiff’s motion.  (Code Civ. Proc., § 473, subd. (b).)

Plaintiff submits the declaration of its counsel, Lane Nussbaum, who states that (1) Plaintiff became aware of Defendants’ motion only after receiving a notice of the October 21, 2022 ruling; (2) Plaintiff was never served with a copy of Defendants’ motion; and (3) because Plaintiff was not served with Defendants’ moving papers, the October 21, 2022 court order was a surprise to Plaintiff.  (Nussbaum Decl., ¶¶ 8-10.)  The court notes that, in opposition, Defendants’ counsel states that he personally mailed the moving papers to Plaintiff’s counsel.  (Meehan Decl., ¶ 3.)  While counsel may have mailed Defendants’ motion, Plaintiff has presented evidence establishing that the moving papers were not received by Plaintiff’s counsel, thereby depriving Plaintiff of the opportunity to file an opposition.

The court therefore exercises its discretion to set aside the court’s October 21, 2022 order granting Defendants’ motion to set aside judgment and to quash service of summons.  (Code Civ. Proc., § 473, subd. (b).)

ORDER

            The court grants plaintiff Bellflower First Plaza, LLC’s motion to set aside 10/21/2022 order.

            The court orders that its October 21, 2022 order granting defendants Giovanni & Son, LLC, and Lisa Mirizzi’s motion to set aside judgment and to quash service of summons is vacated.

            The court sets a hearing on defendants Giovanni & Son, LLC, and Lisa Mirizzi’s motion to set aside judgment and to quash service of summons on April 24, 2023, at 10:00 a.m., in Department 53.

            The court orders defendants Giovanni & Son, LLC and Lisa Mirizzi to serve on plaintiff Bellflower First Plaza, LLC all papers filed in support of their motion to set aside judgment and to quash service of summons no later than January 20 , 2023.

The court orders that plaintiff Bellflower First Plaza, LLC shall file any opposition papers no later than nine court days before the hearing, and defendants Giovanni & Son, LLC and Lisa Mirizzi shall file any reply papers no later than five court days before the hearing pursuant to Code of Civil Procedure section 1005. 

The court orders that (1) the Case Management Conference and (2) Order to Show Cause re failure to file proof of service of summons and complaint set for January 26, 2023, are continued to April 24, 2023, at 10:00 a.m.   

            The court orders plaintiff Bellflower First Plaza, LLC to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 10, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court