Judge: Robert B. Broadbelt, Case: 22STCV33472, Date: 2023-10-11 Tentative Ruling

Case Number: 22STCV33472    Hearing Date: October 11, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Defendant Restore a Floor     

RESPONDING PARTIES:     Plaintiffs Mac Calva and Tatyana Nosenko    

Motion to Set Aside or Vacate Order

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

DISCUSSION

Defendant Restore a Floor (“Defendant”) moves the court for an order setting aside its March 6, 2023 order granting the unopposed Petition for Order Releasing Property from Claim of Mechanic’s Lien filed by plaintiffs Mac Calva and Tatyana Nosenko (“Plaintiffs”) on the ground that the order was taken against Defendant through mistake, inadvertence, surprise, or excusable neglect.

“The court may, upon any terms as may be just, relieve a party . . . 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 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].)  

Defendant contends that the court should set aside its order because (1) the lien at issue was released on December 20, 2022, before the court ruled on Plaintiffs’ motion; (2) Defendant’s owner provided a copy of the release of lien to his insurance company’s attorney, which was then sent to Plaintiff’s counsel the morning of the hearing; and (3) “[t]here was no service of summons when the Petition was served.”  (Abramson Decl., ¶¶ 4, 9-10; Mot., p. 4:14-15.)

The court finds that Defendant has not met its burden to show that the March 6, 2023 order was taken against it through its mistake, inadvertence, surprise, or excusable neglect.  (Code Civ. Proc., § 473, subd. (b); Hopkins, supra, 200 Cal.App.4th at p. 1410.)

First, although Defendant has shown that it recorded a Release of Mechanics Lien on December 20, 2022, Defendant has not presented a satisfactory reason explaining why it did not (1) file evidence of the release with the court, (2) appear at the hearing on the petition to present this evidence, or (3) serve Plaintiffs with the release once Defendant received notice of the petition.  (Abramson Decl., Ex. A, Dec. 20, 2022 Release of Mechanics Lien.)  The court notes that Defendant appears to contend that it was reasonable to believe that release of the lien would, alone, resolve the petition in its favor, and that its failure to file an opposition constitutes excusable neglect.  (Abramson Decl., ¶ 6.)  The court disagrees and finds that Defendant’s failure to present evidence of the release of the lien to the court in opposition to Plaintiff’s petition does not constitute excusable neglect.  (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 929 [“Within the context of section 473(b) neglect is excusable if a reasonably prudent person under similar circumstances might have made the same error”].)  

Second, the court notes that Defendant’s owner has stated, in his declaration, that he sent the release of lien to his insurance company’s attorney before March 6, 2023.  However, as set forth above, Defendant did not take any steps to file this information with the court or to serve Plaintiffs with the release upon being served with the petition.  Further, the court notes that, although Defendant argues that Plaintiffs’ counsel should have disclosed that the lien was released at the hearing, Plaintiffs’ counsel has stated, in his declaration, that (1) he discovered the email forwarding the release – sent on March 6, 2023, at 8:19 a.m. – “after the hearing” on the petition, and (2) he did not have an opportunity to review the release before the hearing, and therefore could not withdraw the petition.  (Julander Decl., ¶ 7; Abramson Decl., Ex. B, p. 2 [email sent to Plaintiffs’ counsel on March 6, 2023, at 8:19 a.m.])

Finally, the court notes that Defendant takes issue with service, arguing that Plaintiffs improperly served Defendant because the petition must have been served after, or with, a Summons.  (Opp., p. 5:10-11.)  However, Defendant does not cite any authority in support of that position.  Further, Plaintiffs (1) properly served Defendant with the petition and supporting papers by certified mail, postage prepaid, return receipt requested on January 9, 2023, and (2) properly served Defendant with the petition, summons, and other related documents by serving the California Secretary of State on January 26, 2023.  (Civ. Code, § 8486, subd. (b) [petition must be served “in the same manner as service of summons, or by certified or registered mail, postage prepaid, return receipt requested, addressed to the claimant as provided in Section 8108”]; Proof of Service filed Jan. 12, 2023; POS-010 filed Feb. 1, 2023.)

Thus, the court finds that Defendant has not met its burden to show that it is entitled to relief pursuant to Code of Civil Procedure section 473 and therefore denies Defendant’s motion.

ORDER

The court denies defendant Restore a Floor’s motion to set aside or vacate order.

The court orders plaintiffs Mac Calva and Tatyana Nosenko to give notice of this ruling.

IT IS SO ORDERED.

DATED:  October 11, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court