Judge Ronald F. Frank, Case 22TRCV00913 2023-03-27 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV00913, Date: 2023-03-27 Tentative Ruling

Case Number: 22TRCV00913 Hearing Date: March 27, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: March 27, 2023

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CASE NUMBER: 22TRCV00913

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CASE NAME: Kheir vs. Bon Hoa Patrice, Wells Fargo Bank, and Eric Doe

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MOVING PARTY: Defendant Patrice Hui Bon Hoa (erroneously sued as Bon Hoa Patrice)

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RESPONDING PARTY: Plaintiff Elbashier M. Kheir

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TRIAL DATE: TBD

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MOTION:¿ (1) Motion to Set Aside Default

Tentative Rulings: (1) Granted.

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I. BACKGROUND¿¿

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A. Factual¿¿

On October 11, 2021, Plaintiff Elbashier M. Kheir (“Plaintiff”) sued Defendants Patrice Hui Bon Hoa (“Bon Hoa”), Wells Fargo Bank (“Wells Fargo”), and Eric Doe (“Doe”) (collectively, “Defendants”), alleging causes of action for breach of written contract, unlawful conversion, money had and received, theft by false pretense, money laundering, negligence, violation of Consumers Protection Act, intentional misrepresentation, and negligent misrepresentation. Plaintiff filed a proof of service on November 22, 2022, stating that on November 1, 2022, the summons and complaint were served by substitute service on Bon Hoa via Kelcie Chase and mailed to Bon Hoa on the same day. Plaintiff and Bon Hoa are both pro per parties.

B. Procedural

On December 29, 2022, Plaintiff filed a request for entry of default and default judgment against Bon Hoa. The court clerk entered default the same day.

On January 23, 2023, Plaintiff amended his complaint, following a hearing on Wells Fargo’s demurrer on January 6, 2023.

On February 15, 2023, Bon Hoa moved to set aside the default, attaching a copy of her Answer to Plaintiff’s complaint. On February 7, 2023, prior to the filing of the instant motion, Plaintiff filed an opposition to Bon Hoa’s motion to set aside the default. On March 10, 2023, Plaintiff filed an amended opposition to the motion to set aside the default. The Court notes Plaintiff’s opposition and amended opposition present the same arguments. As of the date of this hearing, Plaintiff has not filed a reply.

¿II. MEET AND CONFER

Not applicable.

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¿III. ANALYSIS¿

A. Legal Standard ¿

“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. 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…” (C.C.P. §473(b).) In order to qualify for relief under section 473, the moving party must act diligently in seeking relief and must submit affidavits or testimony demonstrating a reasonable cause for the default. (Elston v. City of Turlock (1985) 38 Cal. 3d 227, 234.)

B. Discussion

As a preliminary matter, Bon Hoa’s motion is timely, as it was filed less than six months after entry of default on December 29, 2022. In addition, based on the filing date of the motion, Bon Hoa was diligent in moving for relief from default within a reasonable time of discovering the default entered against her.

The Court finds Bon Hoa’s failure to comply the court’s procedural rules to enable her to properly respond to the complaint was the result of mistake, inadvertence, surprise, and/or excusable neglect. Bon Hoa declared that because she had never communicated with Plaintiff about a rental and that she was not a Wells Fargo Bank customer, she decided not to respond to the complaint. (Decl. of Defendant ¶ 4.) Bon Hao declared that only after she became aware that Wells Fargo Bank had filed a demurrer, she began to seek legal advice and concluded that she needed to respond to the complaint to protect herself. (Decl. of Defendant ¶ 6.) She attempted to file an answer on January 5, 2023, but learned that the clerk had entered default against her on December 29, 2022. (Decl. of Defendant ¶ 7.) On January 6, 2023, she appeared at the hearing on Defendant Wells Fargo Bank’s demurrer and explained her circumstances to the court. (Decl. of Defendant ¶ 8.) Bon Hoa also declared that on November 5, 2022, her elder sister passed away. (Decl. of Defendant ¶ 5.) In opposition, Plaintiff made conclusory arguments, stating “Patrice failed to meet anyone of the standard mentioned above…” (Amend. Opp. Motion 3:1.) Plaintiff argues that Hon Boa’s argument is based upon what happened prior to filing the complaint and not after. (Amend. Opp. Motion 3:2-4.) However, Bon Hoa’s assertions in her declaration disprove plaintiff’s argument. The Court finds that Bon Hua’s declaration meets the liberal standards of Section 473 and sufficiently detail the defendant’s mistake or excusable neglect in failing to timely respond to the Complaint.

IV. CONCLUSION¿¿

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Based on the foregoing, Bon Hoa’s motion to vacate default is granted. Bon Hoa shall file and serve her responsive pleading within 10 days.