Judge: Stephen Morgan, Case: 23AVCV00054, Date: 2023-10-17 Tentative Ruling

Case Number: 23AVCV00054    Hearing Date: October 17, 2023    Dept: A14

Background

This is a debt collection action. Plaintiff California Business Bureau Inc. (“Plaintiff”) alleges that it is a debt collector and on or about February 26, 2029 and March 22, 2020, Defendants Luk Pettingill aka James Pettingill (“Luk”[1]) and Kristina Pettingill aka Kristina M. Pettingill (“Kristina” and collectively “Defendants”), a married couple at the time, became indebted to Plaintiff’s assignor, Antelope Valley Medical Center (“AVCM”), for medical services furnished by AVCM and, after applying all credits to the extent applicable, the debt remains outstanding in the principal sum of $31,285.20. Plaintiff contends that, though demand for payment has been made, Defendants have failed to pay.

On January 17, 2023, Plaintiff filed this Complaint alleging three causes of action for: (1) Open Book Account, (2) Account Stated, and (3) Quantum Meruit.

On September 14, 2023, Luk filed this Motion to Set Aside Default.

No Opposition has been filed. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . .before the hearing.” (Cal. Code Civ. Proc. §1005(b).) “Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section.” (Ibid.) The hearing is set for October 17, 2023. An Opposition was due no later than October 04, 2023. Should an Opposition be filed, it is now untimely.

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Legal Standard

Standard to Set Aside Default – ¿“ ‘ A motion for relief under section 473 is addressed to the sound discretion of the trial court and an appellate court will not interfere unless there is a clear showing of an abuse.’ ” (Burnete¿v. La Casa Dana Apartments¿(2007) 148 Cal.App.4th 1262, 1266.)¿ “Although a trial court has discretion to vacate the entry of a default or subsequent judgment, this discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.” (Cruz v.¿Fagor¿America, Inc.¿(2007) 146 Cal.App.4th 488, 495.)¿¿ 

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Additionally, the California Supreme Court has held the following:¿¿¿ 

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Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations “very slight evidence will be required to justify a court in setting aside the default.” [Citations.] [¶] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. [Citations.] Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. [Citations.]¿¿¿ 

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(Elston¿v. City of Turlock¿(1985) 38 Cal.3d 227, 233-34.)¿¿ 

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Cal. Code Civ. Proc. § 473(b) permits the Court to “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or through his or her mistake, inadvertence, surprise or excusable neglect.”¿(Cal. Code Civ. Proc. § 473(b).) “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.” (Id.)¿ 

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Discussion

Application – Defendant directs the parties and the Court to his declaration, arguing that it demonstrates his mistake and qualifies him for relief under Cal. Code Civ. Proc. § 473(b). Defendant presents that he has made this motion within the six-month deadline and has included a copy of his Verified Answer to Plaintiff’s Complaint proposed to be filed. Defendant also presents that the parties were negotiating when default was entered and highlights that California law has long recognized the obligation to notify opposing counsel of an intent to enter default. (See Smith v. Los Angeles Book Binders Union No. 63 (1955) 133 Cal.App.2d 500; Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681; Labelle v. Vogel (2019) 36 Cal.App.5th 127; and SoCal Rental Properties, LLC v. Chico FAS, Inc. (2022) 85 Cal.App.5th 198.) Defendant further presents that he has a meritorious defense to the claims asserted by Plaintiff and that Plaintiff will not be prejudiced by setting aside the default as Kristina has already filed her own Answer to the identical allegations alleged against her. That is, even if Defendant remains in default, Plaintiff would have to prove an identical case and still proceed against Kristina.

Cal. Code Civ. Proc. § 473 reads, in relevant part:

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. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. No affidavit or declaration of merits shall be required of the moving party. 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.

(Cal. Code Civ. Proc. § 473(b).)

California courts have interpreted subdivision (b) to include both a mandatory relief provision and a permissive relief provision.

Case law provides: 

Having the benefit of reviewing English and its progeny, we disapprove of our prior opinions in Avila v. Chua, supra, 57 Cal.App.4th 860 and In re Marriage of Hock & Gordon-Hock, supra, 80 Cal.App.4th 1438. As summarized succinctly by our colleague, now Retired Associate Justice Richard J. McAdams, in Huh, supra, 158 Cal.App.4th at page 1417: “We agree with the cogent analysis in English, which is faithful to legislative intent and consistent with established principles of statutory construction. As the English court said: ‘It is not an appellate court's task, nor, indeed, its prerogative, when interpreting a statute, to extend the scope of the statute to encompass situations “analogous” to those the statute explicitly addresses. Rather, an appellate court's task is simply to determine what the Legislature meant by the words it used, relying first and foremost on the words themselves.’ (English, supra, 94 Cal.App.4th at p. 144.) Where the statutory language is unambiguous, its plain meaning controls. (Id. at p. 143; see Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 919 [129 Cal. Rptr. 2d 811, 62 P.3d 54].) Here, the statutory language is unequivocal. ‘As expressly worded, section 473(b)[’ s mandatory provision] applies only to relief sought in response to defaults, default judgments or dismissals.’ (Vandermoon v. Sanwong, supra, 142 Cal.App.4th at p. 320, italics added.) Summary judgments are neither defaults, nor default judgments, nor dismissals. (English, at p. 133.) The explicit statutory language of section 473(b) thus ‘provides no basis for extending the mandatory provision’ to such judgments. (Prieto v. Loyola Marymount University, supra, 132 Cal.App.4th at p. 297.) In the words of Justice Epstein, ‘to read the mandatory provision of … section 473 to apply whenever a party loses his or her day in court due to attorney error goes far beyond anything the Legislature has done.’ (Yeap[ v. Leake], supra, 60 Cal.App.4th at p. 605 (dis. opn. of Epstein, J.).)” We agree with Retired Associate Justice McAdams's cogent analysis and disapprove of our mandatory relief discussions in Avila and Hock. 

(The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, 1000-01.)

The Court looks at Luk’s declaration. Luk states he has no recollection of receiving the Summons and Complaint; he did not associate Plaintiff with the medical bills; and had he known it was related to the medical bills, he would have contacted counsel. (Decl. Luk ¶¶ 22-23.) Counsel for Luk, Robert Ryan (“Ryan”) has attached a declaration as well. Ryan details his process of determining liability policies from the accident that led to the medical bills, negotiating with providers, and negotiating with Plaintiff. (See Decl. Ryan [generally].)  Ryan presents that Plaintiff did not disclose that it had filed a lawsuit against Defendants, that a Summons and Complaint had been served, or that a default was in the process f being taken. (Id. at ¶ 24.) Ryan presents that his firm found out about the lawsuit as he was informed by Luk that Kristina had been served at her work address in August 2023 and, only upon this information and after a Labor Day Trip, did counsel become aware that a default had been taken. (Id. at ¶¶ 27-28.) Thus, as this is an application for relief from default made within six months and is accompanied by both Luk and Ryan’s sworn affidavit attesting to their respective mistakes or inadvertence, the mandatory provision of Cal. Code Civ. Proc. § 473(b) applies.

The Court notes that Plaintiff has not filed an Opposition to this motion and that a failure to oppose a motion may be construed as a concession on the merits. (See D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving party] concedes” that ground].)

Accordingly, the Motion to Set Aside Entry of Default is GRANTED.

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Conclusion

Defendant Luk Pettingill aka James Pettingill’s Motion to Set Aside Entry of Default is GRANTED.