Judge: Stephanie M. Bowick, Case: 22STCV15026, Date: 2023-09-18 Tentative Ruling
DEPARTMENT 19 LAW AND MOTION RULINGS
If you desire to submit on a tentative ruling, you may do so by e-mailing Dept. 19 before 08:00 a.m. on the day of the motion hearing. The e-mail address for submitting is SMCDept19@lacourt.org. The heading on your e-mail must contain the case name and number, and that you submit. For example, "Smith v. Jones BC551124, submit". The message should indicate your name, contact information, and the party you represent.
PLEASE NOTE, The above e-mail address is only to inform the Court of your submission on the tentative ruling. All other inquiries or correspondence will not receive a response.
Case Number: 22STCV15026 Hearing Date: September 18, 2023 Dept: 19
RULING
After consideration of the briefing filed and oral argument at the hearing, Defendants Valencia Fulfillment, Inc., Jose Corona, and Marisol Corona’s Motion to Set Aside Default Based On Attorney Fault is DENIED without prejudice.
Counsel for Plaintiffs to give notice.
STATEMENT OF THE CASE
This action arises out of alleged breach of contract.
Plaintiff Rocio Ayala and Plaintiff Gary Rand & Suzanne E. Rand-Lewis,
Professional Law Corporations (collectively, “Plaintiffs”) bring suit against
Defendants Valencia Fulfillment, Inc., Jose Corona, and Marisol Corona
(collectively, “Defendants”) alleging the following causes of action:
1.
Breach
of Express Contract;
2.
Constructive
Trust/Unjust Enrichment;
3.
Violation
of Business and Professions Code §17200; and
4. Interference with Prospective Economic Advantage & Business Relations.
On Jun 16, 2022, default was entered as to Defendant Valencia Fulfillment, Inc.
Although Defendants filed the instant Motion to Set Aside Default Based On Attorney Fault (the “Motion”), default has not been entered against Defendant Jose Corona or Defendant Marisol Corona. Thus, the Court construes the Motion as being brought only by Defendant Valencia Fulfillment, Inc. (hereafter, “Valencia”)
GROUNDS FOR MOTION
Pursuant to Code of Civil Procedure section 473, subdivision (b), Defendant Valencia moves for an order granting relief from default on the ground of attorney mistake.
DISCUSSION
I. Legal Standards
It is well established that Code of Civil Procedure section 473 is remedial, and its provisions to be liberally construed so as to dispose of cases upon their merits. (See, e.g., Laguna Village, Inc. v. Laborers' Internat. Union of North America (1983) 35 Cal.3d 174, 182; Taliaferro v. Taliaferro (1963) 217 Cal.App.2d 216, 220.)
Code of Civil Procedure section 473, subdivision (b) consists of two distinct parts: “a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25-26; Bailey v. Citibank, N.A. (2021) 66 Cal.App.5th 335, 348.)
The discretionary relief provision of Code of Civil
Procedure section 473, subdivision (b) provides, in relevant part, as follows:
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.
(Code Civ. Proc., § 473(b).)
The mandatory provision of Code of Civil Procedure section 473, subdivision (b) provides as follows:
Notwithstanding any other requirements
of this section, the court shall, whenever an application for relief is made no
more than six months after entry of judgment, is in proper form, and is
accompanied by an attorney’s sworn affidavit attesting to his or her mistake,
inadvertence, surprise, or neglect, vacate any (1) resulting default entered by
the clerk against his or her client, and which will result in entry of a
default judgment, or (2) resulting default judgment or dismissal entered
against his or her client, unless the court finds that the default or dismissal
was not in fact caused by the attorney’s mistake, inadvertence, surprise, or
neglect. The court shall, whenever relief is granted based on an attorney’s
affidavit of fault, direct the attorney to pay reasonable compensatory legal
fees and costs to opposing counsel or parties. However, this section shall not
lengthen the time within which an action shall be brought to trial pursuant to
Section 583.310.
(Code Civ. Proc., § 473(b).)
“Under the traditional discretionary provisions of section 473, a party seeking relief on the basis of its attorney's neglect must show that the neglect was excusable.” (Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995) 31 Cal.App.4th 1481, 1486–1487.) However, “[a]n entirely different standard exists under the mandatory relief provisions,” and “require the court to grant relief if the attorney admits neglect, even if the neglect was inexcusable.” (Id. at 1487 (citing Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1603).)
“Relief can only be granted under the mandatory provision… if relief could have been granted under the discretionary provision.” (Minick, supra, 3 Cal.App.5th at 26 (citing Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 681).) If the requirements of the mandatory provision are met, then relief is mandatory. (Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 989.)
Here, Defendant Valencia moves pursuant to the mandatory provision.
II. Analysis
As an initial matter, the Court rejects Plaintiffs’
argument that the Motion is untimely because it wasn’t filed until more than
six (6) months after the entry of Defendant Valencia’s default.
Unlike the discretionary provision, which requires the application to be “made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken,” the mandatory provision requires the application to be made “no more than six months after entry of judgment.” (Code Civ. Proc., § 473(b).)
Here, default judgment has not been entered, and thus the Court does not find the Motion untimely. (See Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 296-297 [six-month period for mandatory relief runs from the entry of the default judgment, not the entry of default].)
However, the Court agrees with Plaintiffs that the Motion is missing pages and is incomprehensible. Critically, the declaration of Robert Hirschman is missing pages, including a signature page. Thus, the declaration of Robert Hirschman cannot constitute “an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (See Code Civ. Proc., § 2015.5 [requirements for sworn affidavit].)
The proposed demurrer is also missing pages, and therefore the Court finds that Defendant Valencia’s Motion is not in “proper form” because Defendant Valencia has not submitted a responsive pleading. (See Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 401-402 [discussing what constitutes “proper form”].)
For these reasons, the Motion is
DENIED without prejudice.