Judge Ronald F. Frank, Case Number: 23TRCV00793, Date: 2023-08-09 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV00793, Date: 2023-08-09 Tentative Ruling

Case Number: 23TRCV00793 Hearing Date: August 9, 2023 Dept: 8

Tentative Ruling¿

¿¿

HEARING DATE: August 9, 2023¿¿

¿¿

CASE NUMBER: 23TRCV00793

¿¿

CASE NAME: Jan L. Franklin v. Coast to Coast Group, LLC, et al.

¿¿

MOVING PARTY: (1) Defendant, Coast to Coast Group, LLC

(2) Defendant, Century 21 Peak

¿¿

RESPONDING PARTY: (1) Jan L. Franklin ( No Opposition)

(2) Jan L. Franklin ( No Opposition)

¿¿

TRIAL DATE: None set.

¿¿

MOTION:¿ (1) Defendant, Coast to Coast Group, LLC’s Motion to Set Aside

(2) Defendant, Century 21 Peak’s Motion to Set Aside

Tentative Rulings: (1) GRANTED

(2) GRANTED

I. BACKGROUND¿¿

¿¿

A. Factual¿¿

On March 17, 2023, Plaintiff, Jan L. Franklin (“Plaintiff”) filed a Complaint against Defendants, Coast to Coast Group, LLC, a California Limited Liability Company, Brenda Mendoza, an individual, Revision Investments, LLC, a California Limited Liability Company, Erasmo Reyes, an individual, Peak Reality Co., a California Corporation dba Century 21 Peak; and DOES 1 though 50, inclusive. The Complaint alleges causes of action for (1) Breach of Written Contract; (2) Negligence/Negligent Misrepresentation; and (3) Fraud.

On May 1, 2023, Plaintiff filed a Request for Entry of Default as to defendant, Coast to Coast Group, LLC and Brenda Mendoza. Default was entered as requested on May 1, 2023.

Additionally, on May 1, 2023, Plaintiff also filed a Request for Entry of Default as to Defendant, Revision Investments, LLC and Erasmo Reyes. Subsequently, Default was entered as requested on May 1, 2023.

Defendant, Coast to Coast Group, LLC now files a Motion Setting Aside Entry of Default as to Coast to Coast. Additionally, Defendants, Century 21 Peak also has filed a Motion Setting Aside Default of Brenda Mendoza.

B. Procedural

On July 7, 2023, Defendant, Coast to Coast Group, LLC filed a Motion for Order Setting Aside Entry of Default. To date, no opposition has been filed.

Further, on July 7, 2023, Defendants Century 21 Peak filed a Motion for Order Setting Aside Default of Brenda Mendoza. To date, no opposition has been filed.

II. ANALYSIS¿

A. Legal Standard

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. Defendant Coast to Coast Group, LLC’s Motion to Set Aside

Here, Defendant Coast to Coast Group argues that it was served with Plaintiff’s summons and complaint on or about March 25, 2023 through its managing member, Brenda Mendoza. Coast to Coast asserts that after receiving the Complaint, Mendoza contacted an attorney at Zelms Erlich & Mack, and that during such communications, Mendoza believed that the law firm would be representing not only her employer, Peak Realty Co. dba Century 21 Peak Realty, but also herself as an individual and Defendant. However, Coast to Coast contends that Mendoza learned that Defendant would not be represented by the law firm and contacted Snyder Law Firm, PLC. Thereafter, Coast to Coast notes that after retaining the services of Snyder Law Firm, PLC, and upon them learning that the default had been entered by the Court, Brad Snyder, Esq. sent an email to counsel for Plaintiff requesting that the default be set aside. However, counsel notes that after not hearing back from Plaintiff’s counsel, h sent a follow up email on June 15, 2023, and Plaintiff’s counsel responded on June 16, 2023, advising that he was not authorized to voluntarily set aside the default. As such, Coast to Coast has brought this motion.

Defendant Coast to Coast acted expeditiously in moving to set aside the default. Pursuant to Code of Civil Procedure § 473 (b), a motion to set aside/vacate a default judgement shall be made within a reasonable time, in no case exceeding six months, after the judgment. Here, the Default Judgment was entered on May 1, 2023, and Defendant has filed this Motion on July 7, 2023. As such, the motion is timely. Defendant further explains that upon realizing that Mendoza was not represented by the previous firm, it contacted another firm, and when they found out about the default, they immediately contacted Plaintiff’s counsel.

Based on Defendant, Coast to Coast’s arguments, the declaration of their counsel, the declaration of Brenda Mendoza, the apparent good faith basis of the defaulting defendant’s failure to file a response to the lawsuit in timely fashion, and the pace at which Defendant acted once discovering the entry of default, the Court GRANTS Coast to Coast’s motion. A stand-alone responsive pleading, i.e., an Answer, must be filed within 5 days of notice of this ruling.

C. Defendant, Century 21 Peak’s Motion to Set Aside

Defendant Century 21 Peak argues that it was served with Plaintiff’s summons and complaint on or about March 25, 2023. Century asserts that as a real estate agent, Mendoza believes she would have insurance assign her an attorney to defend her in the case. (Mendoza Decl., ¶ 2.) However, after receiving the Complaint, Mendoza spoke to an attorney at Zelms Erlich & Mack about representation, and during such communication, Mendoza believed that the firm would be representing not only her employer, Century, but also herself as an individual and as a real estate agent. (Mendoza Decl., ¶ 3.) However, Century notes that not until sometime around June 1, 2023, did Mendoza get confirmation that the firm would in fact be representing her as a real estate agent (Mendoza Decl., ¶ 3; Hawatmeh Decl., ¶¶ 4-5.) Century notes that Zelms Erlich & Mack reached out to Plaintiff’s counsel for the first time on April 25, 2023 and stated that it would be representing Century 21, Mendoza’s broker (Hawatmeh, ¶ 4.) Century contends that around that same time is when Mendoza received confirmation that the law firm would in fact be representing her as a real estate agent. Century notes that counsel met and conferred with Plaintiff’s counsel and explained that it had just been confirmed that she would be representing Mendoza as an agent only, however, counsel stated that he did not have authority to set aside the default as to her as an agent, or seller. (Hawatmeh Decl., ¶ 6.) As such, Century has brought this motion.

As did Coast to Coast as noted above, Century also acted expeditiously in moving to set aside the default upon realizing that Mendoza was not represented by the previous firm. The papers in support of the motion show that Century promptly contacted another firm, and when they found out about the default, they immediately contacted Plaintiff’s counsel.

Defendant Century also argues that in light of the circumstances that impeded Mendoza, insistence on the formalities of a default impose substantial and undue hardships on her. The Court agrees and notes that the case is still in its infancy and that Plaintiff has not opposed the motion. As with respect to the motion field by Coast to Coast, the Court finds that Century’s arguments, the declaration of their counsel, the declaration of Brenda Mendoza, the good faith basis shown to be the explanation for the delay in responding to the Complaint, and the pace at which Defendant acted once finding out about the Request for Default Judgment, this Court GRANTS Century’s motion. A stand-alone responsive pleading, i.e., an Answer, must be filed within 5 days of notice of this ruling.