Judge Ronald F. Frank, Case 23TRCV00406 2023-05-09 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV00406, Date: 2023-05-09 Tentative Ruling

Case Number: 23TRCV00406 Hearing Date: May 9, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: May 9, 2023¿¿

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CASE NUMBER: 23TRCV00406

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CASE NAME: Inglewood Church of Crist v. Zeeba Vans Company, Inc, et al.

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MOVING PARTY: Defendants, Zeeba Vans, Inc., Kayvon Marashi, and Michael Paletz

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RESPONDING PARTY: Plaintiff, Inglewood Church of Christ

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TRIAL DATE: None set.

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MOTION:¿ (1) Motion to Set Aside/Vacate Entry of Defaults

Tentative Rulings: (1) Defendants’ Motion to Set Aside/Vacate Entry of Defaults is GRANTED pursuant to CCP §473(b), predicated on the Declaration of counsel for Defendant that it was his excusable neglect and mistake that resulted in his client’s default.

(2) On the Court’s own motion the Court will set a hearing on an Order to Show Cause why the Complaint should not be dismissed without prejudice to its re-filing, where it appears Plaintiff is not represented by counsel but has purported to file a lawsuit and file briefs in opposition to this motion. The Court will take ARGUMENT on this issue and discuss a possible hearing date

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I. BACKGROUND¿¿

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A. Factual¿¿

On February 14, 2023, Plaintiff, Inglewood Church of Christ, filed a Complaint against Defendants Zeeba Vans Company, Inc., Kayvon Marashi, and Michael Paletz, and DOES 1 through 10.

Plaintiff notes that Defendants were served on February 22, 2023, a default was entered on March 30, 2024, and the default judgment was accepted by the Court on April 19, 2023. Defendants’ assert that their counsel was mistaken, surprised, and/or neglectful in faling to take steps to prevent a default, and therefore request to be relieved from the judgment on those grounds.

B. Procedural

Defendants filed this Motion to Set Aside and/or Vacate Default on April 17, 2023. On April 26, 2023, Plaintiff filed an opposition. On April 28, 2023, Defendants filed a reply brief.

II. REQUEST FOR JUDICIAL NOTICE

Defendants requested that this Court take Judicial Notice of the following:

1. CHURCH’s 2021 Statement of Information filed with the California Secretary of State, a true and correct copy of which is attached to Defendants’ Motion as Exhibit A. DEFENDANTS submit CHURCH’s 2021 Statement of Information to establish that CHURCH is, and was at the timing of filing the complaint and request for default in this action, an incorporated business entity.

The Court GRANTS Defendants’ request and takes judicial notice of the above.

III. ANALYSIS¿

A. Legal Standard

Under Code of Civil Procedure, section 473, subdivision (b), an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise, or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) 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).)¿

Pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief is available to parties from a judgment, dismissal, order, or other proceeding. Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. (Code of Civ. Proc. §¿473(b).) Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Ibid.) Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought. (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“‘[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.)

B. Discussion

Defendants move this Court for an order vacating the default and default judgment entered in this matter on the grounds that their counsel was mistaken, surprised, and/or committed excusable neglect in waiting for Plaintiff to respond to Defendants’ counsel’s communications and to grant a brief extension on Defendants’ responsive pleadings. (See Declaration of Kelvin J. Lo (“Lo Decl.”), ¶¶ 10-11.) More specifically, Defendants not that their counsel was mistakenly relying on previous experience to negotiate informally and grant an extension on the responsive pleading. (Lo Decl., ¶ 10-11.)

Defendants also assert that they have several meritorious defenses to Church’s action: (1) that Marashi and Paletz are neither parties to nor guarantors of the commercial lease agreement between Plaintiff and Zeeba, and therefore, Plaintiff’s complaint fails to allege any facts constituting a cause of action against Defendant Marashi or Defendant Paletz; (2) the duration of the written commercial lease agreement between Plaintiff and Defendant Zeeba was from February 14, 2020 to February 14, 2021, whereas Plaintiff demands rental payments from July 2020 through September 2021, and accordingly, the Plaintiff’s demand for payment is excessive; (3) the commercial lease agreement contains a very broad force majeure provision which bars Defendant Zeeba’s liability “for any failure to perform due to…acts of civil authorities…and other acts which may be due to unforeseen circumstances” and which would reasonably include the COVID-19 pandemic; and (4) Defendant Zeeba may be afforded certain protections pursuant to the tenant protections enacted in response to the COVID-19 pandemic.

Lastly, Defendants assert that the default should be set aside as void since Plaintiff is a Church and a California Corporation and filed this action in propria persona, in violation of the rule requiring corporations to appear through counsel.

In opposition, Plaintiff’s main argument is that Defendants still have not filed any documents answering the complaint.

This Court finds that Defendants’ counsel’s declaration is sufficient to show that mandatory relief under section 473(b) is warranted.