Judge: Stephanie M. Bowick, Case: 23STCV14609, Date: 2024-11-21 Tentative Ruling
Case Number: 23STCV14609 Hearing Date: November 21, 2024 Dept: 19
LA PARK LA BREA v. PAUL WARD, et al.
TENTATIVE RULING
After consideration of the briefing filed and oral argument at the hearing, Defendants Paul Ward and Nathan Beavers’s Motion To Set Aside Default Judgment, Vacate The Default, And Recall The Writ Of Execution, filed on May 21, 2024, is GRANTED.
Defendants to formally file their Answer within ten (10) days.
Counsel for Defendant Paul Ward to give notice.
STATEMENT OF THE CASE
This is an unlawful detainer action. Plaintiff La Park La Brea A, LLC (“Plaintiff”) brings suit against Defendants Paul Ward and Nathan Beavers (collectively, “Defendants”) seeking possession of the real property located at 6280 West 3rd Street #421, Los Angeles, Ca, 90036 (the “Subject Property”), past-due rent, reasonable attorney’s fees, and forfeiture of the rental agreement.
On November 13, 2023, on the Court’s own motion based upon the history of the matter and the Request for Entry of Default filed by Plaintiff on October 27, 2023, the Court entered default against both Defendants, effective November 2, 2023, for failure to timely respond to the Complaint. (November 13, 2023 Minute Order, p. 1.)
On November 15, 2023, the Clerk entered Judgment By Default for Possession Only (the “Clerk’s Judgment”).
On May 21, 2024, Defendants filed the instant Motion
To Set Aside Default Judgment, Vacate The Default, And Recall The Writ Of
Execution (the “Motion”).
GROUNDS FOR MOTION
Pursuant to both the discretionary and mandatory provisions of Code of Civil Procedure section 473, subdivision (b), Defendants move for an order setting aside the Clerk’s judgment, vacating their defaults, and recalling the writ of execution on the grounds of Defendants’ excusable neglect and mistake and attorney mistake.
Additionally, pursuant to Code of Civil Procedure section 473, subdivision (d), Defendants move to vacate the Clerk’s Judgment on the ground that it is void.
DISCUSSION
I.
CODE OF CIVIL PROCEDURE SECTION 473(b)
A. 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.)
“The moving party has the burden of showing that a default or judgment was taken against it through its mistake, inadvertence, surprise, or excusable neglect.” (Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1319, disapproved of on other grounds by Sass v. Cohen (2020) 10 Cal.5th 861).) “If it fails to make this showing, ‘the court may not grant relief. It has no discretion.’” (Id. (quoting Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1042).)
Further, “‘[s]ection 473 of the Code of Civil Procedure permits relief for ‘excusable’ neglect. The word ‘excusable’ means just that: inexcusable neglect prevents relief.’” (Iott v. Franklin (1988) 206 Cal.App.3d 521, 528 (quoting Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 895).)
“The burden of establishing excusable neglect is upon the party seeking relief who must prove it by a preponderance of the evidence.” (Id. (citing Elms v. Elms (1946) 72 Cal.App.2d 508, 519; Kendall v. Allied Investigations, Inc. (1988) 197 Cal.App.3d 619, 624).)
B. Analysis
Here, Defendants move pursuant to both the mandatory and discretionary provisions. (See Motion, pp. 5-9, 11-13.)
The Court first addresses whether Defendants are entitled
to mandatory relief.
1. Mandatory Relief
The Court finds that Defendants are not entitled to relief pursuant to the mandatory provision of Code of Civil Procedure section 473, subdivision (b).
Defendants move for relief pursuant to the mandatory provision of Code of Civil Procedure section 473, subdivision (b) on the ground of mistake by attorney Joseph Cherney. (Motion at pp. 12-13; see Joseph Cherney Decl., ¶¶ 1-8.)
However, it appears that Defendants were not clients of Joseph Cherney during the relevant time period and for purposes of obtaining mandatory relief from the defaults and Clerk’s Judgment.
On February 5, 2024, Defendants, in propria persona, filed a Notice of Limited Scope Representation indicating that Joseph Cherney represented them for purposes of the hearing on February 6, 2024 on Defendants’ Ex Parte Application to Shorten Time For Hearing And For Stay Of Execution and at any continuance of that hearing.
On February 7, 2024, Defendants, in propria persona, filed another Notice of Limited Scope Representation indicating that Joseph Cherney represented them for purposes of the hearing on February 8, 2024 on Defendants’ Ex Parte Application to For Stay Pending Appeal and at any continuance of that hearing.
On February 20, 2024, Defendants, in propria persona, filed a Substitution of Attorney stating that their former legal representative was Joseph Cherney, but that Defendants now represent themselves.
Despite these filings, which were filed by Defendants in propria persona and not by Joseph Cherney, there is nothing indicating that Mr. Cherney ever represented Defendants during the relevant time period necessary for obtaining mandatory relief from the defaults and Clerk’s Judgment.
The Motion to Quash Service of Summons, filed on July 7, 2023, and the Motion to Quash Service of Summons, filed on November 3, 2023, were filed by Defendants in propria persona.
The Court also notes that the declaration of Joseph Cherney filed with the Motion states that he was hired by Defendants “for advice and assistance drafting pleadings in this case.” (Joseph Cherney Decl., ¶ 1.) The declaration of Paul Ward also indicates that, while Joseph Cherney was aiding Defendant Ward concerning the matter, he was not providing formal legal representation. (See Paul Ward Decl., ¶¶ 2, 5, 7, 9, 11-12, 15.)
Since it does not appear that Defendants were ever
clients of Joseph Cherney during the relevant time period necessary for
obtaining mandatory relief from the defaults and Clerk’s Judgment, Defendants cannot
obtain relief pursuant to the mandatory provision of Code of Civil Procedure
section 473, subdivision (b). (See Esther B. v. City of Los Angeles
(2008) 158 Cal.App.4th 1093, 1099-1100 [mandatory relief provision does not
operate in favor of a party representing himself or herself in propria persona
because mandatory relief provision only applies in the case of an “attorney”
representing a “client.”].)
With respect to Defendants’ motion for relief pursuant to the discretionary provision of Code of Civil Procedure section 473, subdivision (b), the Motion is accompanied by a copy of a [Proposed] Answer to be filed on behalf of both Defendants indicating that they are ready to proceed with the action on its merits. (See Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393. 401-402 [purpose of proposed pleading requirement “is to provide the delinquent party with an opportunity to show good faith and readiness to answer the allegations of the complaint….”].)
After consideration of the briefing an evidence filed, the Court finds that Defendants meet their burden showing that the entry of the defaults and Clerk’s Judgment were entered due to excusable neglect or mistake.
The Proofs of Service of Summons, filed on September 1, 2023, indicate that Defendant Ward was personally served on July 1, 2023 and that Defendant Beaver was served by substituted service on July 1, 2023.
Code of Civil Procedure section 418.10, subdivision (a)
provides that:
A defendant, on or before the last day
of his or her time to plead or within any further time that the court may for
good cause allow, may serve and file a notice of motion for one or more of the
following purposes:
(1)
To
quash service of summons on the ground of lack of jurisdiction of the court
over him or her.
(Code Civ. Proc., § 418.10(a).)
On July 7, 2023, before Defendants’ last day to plead, Defendants filed and served a Motion to Quash Service of Summons (hereafter, the “First Motion to Quash”) pursuant to Code of Civil Procedure sections 418.10 and 1167.4, with a noticed hearing date of January 16, 2024.
On September 12, 2023, the Court granted Plaintiff’s Ex Parte Application to Shorten Time to Hear Defendants' Motion to Quash and advanced the hearing to October 24, 2024. (September 12, 2023 Minute Order, p. 1.)
At the October 24, 2024 hearing, there were no appearance by Defendants and, after conferring with Plaintiff’s counsel, the Court continued the hearing to October 27, 2024. (October 24, 2023 Minute Order, p. 1.)
At the October 27, 2024 hearing, the Court ordered the First Motion to Quash off calendar on the basis that Defendants failed to appear at the September 12, 2023, October 24, 2024, and October 27, 2024 hearings. (October 27, 2023 Minute Order, p. 1.)
However, as correctly argued by Defendants, the Notice of
Motion for the First Motion to Quash indicated that Defendants “will submit on
the papers absent actual appearance [CRC §3.1304(c)].” (First Motion to Quash,
p. 2.)
A party may give notice that he or she
will not appear at a law and motion hearing and submit the matter without an
appearance unless the court orders otherwise. The court must rule on the motion
as if the party had appeared.
(Cal. R. Ct., 3.1304(c).)
Thus, the Court agrees with Defendants that, pursuant to California Rules of Court, rule 3.1304, subdivision (c), rather than take the First Motion to Quash off calendar due to Defendants’ failure to appear, the Court was instead required to rule on the Motion to Quash as if Defendants appeared, and rejects Plaintiff’s suggestions that Defendants needed to file a reply or appear at the hearing to orally argue. (See Opposition. p. 6, lines 1-14.)
Since the First Motion to Quash was filed before Defendants’ last day to plead and gave notice pursuant to California Rules of Court, rule 3.1304, subdivision (c), the Court rejects Plaintiff’s argument that the default and default judgment were entered due to Defendants’ failure to timely respond to the Complaint rather than due to Defendants’ failure to appear at the hearings. (See Opposition, pp. 5-6.)
The Court explicitly entered Defendants’ defaults, deemed effective November 3, 2023, due to Defendants’ failures to appear at the September 12, 2023, October 24, 2024, and October 27, 2024 hearings. (November 13, 2023 Minute Order at p. 1.) Yet, as discussed above, pursuant to California Rules of Court, rule 3.1304, subdivision (c), Defendants did not need to appear at the October 24, 2024 and October 27, 2024 hearings on the First Motion to Quash. The Court also agrees with Defendants that they did not need to appear at the September 12, 2023 hearing on Plaintiff’s Ex Parte Application to Shorten Time to Hear Defendants' Motion to Quash because only the applicant is required to appear at an ex parte hearing. (See Cal. R. Ct., 3.1207.)
Plaintiff also suggests that the Motion should be denied because Code of Civil Procedure section 1167.4 required that the time for making the First Motion to Quash be not less than three days nor more than seven days after the filing of the notice, and Defendants failed to come in ex parte to shorten time on the hearing. (Opposition at p. 5.) The Court rejects this suggestion because Defendants’ defaults were not entered due to their failure to come in ex parte to shorten time on the hearing, and Plaintiff provides no legal or factual basis to conclude, in light of the foregoing, that Defendants’ failure to come in ex parte to shorten time on the hearing justifies the entry of their defaults and the Clerk’s Judgment notwithstanding the fact that the First Motion to Quash was filed before Defendants’ last day to plead and gave the notice provided by California Rules of Court, rule 3.1304, subdivision (c).
Based on all the foregoing, the Court finds that Defendants meet their burden showing that the entry of default and Clerk’s Judgment were entered due to excusable neglect or mistake. (See also Paul Ward Decl., ¶¶ 1, 5-17; Cherney Decl. at ¶¶ 2-8.)
Accordingly, the Court GRANTS Defendants’ request for relief pursuant to Code of Civil Procedure section 473, subdivision (b).
II. CODE OF CIVIL PROCEDURE SECTION 473(d)
Defendants also move to set aside and vacate their defaults and the entry of the Clerk’s Judgment pursuant to Code of Civil Procedure section 473, subdivision (d) on the ground that the entries of their defaults and the Clerk’s Judgment are void, reasoning that the Court lacked the authority to enter the defaults, and the Clerk lacked the authority to enter the Clerk’s Judgment, because the First Motion to Quash was on file and was not formally denied by the Court. (Motion at pp. 9-11.)
Code of Civil Procedure section 473, subdivision (d) provides that:
The court may, upon motion of the
injured party, or its own motion, correct clerical mistakes in its judgment or
orders as entered, so as to conform to the judgment or order directed, and may,
on motion of either party after notice to the other party, set aside any void
judgment or order.
(Code Civ. Proc., § 473(d).)
The Court agrees with Defendants’ arguments.
As explained by the Court of Appeal in Wilson v. Goldman (1969) 274 Cal.App.2d 573:
Where a defendant has filed an answer,
neither the clerk nor the court has the power to enter a default based upon the
defendant's failure to appear at trial, and a default entered after the answer
has been filed is void, and is subject to expungment at any time either by
motion made pursuant to Code of Civil Procedure, section 473 or by virtue of
the court's inherent power to vacate a judgment or order void on its face.
(Id. at 577 (internal citations omitted) (citing Potts v. Whitson (1942) 52 Cal.App.2d 199; Reher v. Reed (1913) 166 Cal. 525, 528; Baird v. Smith (1932) 216 Cal. 408, 409-411).)
In response to an unlawful detainer complaint, a defendant may file a motion to quash service of the summons in lieu of an answer. (Butenschoen v. Flaker (2017) 16 Cal.App.5th Supp. 10, 12 (citing Code Civ. Proc., §§ 418.10, 1167.4).) “Once a defendant files a motion to quash, a default judgment cannot be entered until after expiration of the defendant's time to demur or answer a complaint.” (Id. at 14 (citing Code Civ. Proc., §§ 418.10(d), 585).)
The time during which the defendant must answer or demur begins upon service of written notice of entry of an order of the court denying the motion to quash. (Code Civ. Proc., §§ 418.10(c), 1167.4(b).)
Here, the First Motion to Quash was never denied by the Court, but was instead ordered off calendar. (See October 27, 2024 Minute Order at p. 1.) As such, there was no order denying Defendants First Motion to Quash.
Thus, the Court agrees with Defendants that, since there was no entry of an order denying their First Motion to Quash, the time for them to plead had not expired when the Court entered their defaults, (Code Civ. Proc., § 1167.5(b)), and that the entry of their defaults and the entry of the Clerk’s Judgment are therefore void. (Code Civ. Proc., §§ 585, 586(a)(4); R & A Vending Services, Inc. v. City of Los Angeles (1985) 172 Cal.App.3d 1188, 1193–1194 (internal citations and quotations omitted) (citing Guardianship of Lyle (1946) 77 Cal.App.2d 153, 155-156) [“A court calendar is a list of causes awaiting hearing on motion or trial. ... The court for good cause has discretion in the control and regulation of its calendar or docket. It is permissible for good cause to delay a trial or hearing to a later date or to drop or strike a case from the calendar, to be restored on motion of one or more of the litigants or on the court's own motion. 'Off Calendar' is not synonymous with 'dismissal.' 'Off' merely means a postponement whereas a 'dismissal' in judicial procedure has reference to a cessation of consideration. Courts have control of pleadings in a case until a valid final judgment is rendered.”].)
Moreover, on November 3, 2023, Defendants filed and served a second Motion to Quash Service of Summons (the “Second Motion to Quash”), noticed for March 26, 2024, which also stated that Defendants “will submit on the papers absent actual appearance [CRC §3.1304(c)],” (Second Motion to Quash, p. 2), but the Court vacated the hearing at the same time it entered Defendants’ defaults because it was filed one day after November 2, 2023, i.e., the effective date of Defendants’ defaults as entered by the Court. (See November 13 Minute Order at p. 1.)
The Court notes that Plaintiff does not assert any
arguments in opposition to Defendants’ request for relief pursuant to Code of
Civil Procedure section 473, subdivision (b). (See, generally, Opposition.)