Judge: Stephen Morgan, Case: 23AVCV00602, Date: 2023-09-19 Tentative Ruling
Case Number: 23AVCV00602 Hearing Date: September 19, 2023 Dept: A14
Background
This is a breach of warranty of
habitability action. Plaintiffs Michaela Ruiz; Juan Ruiz; Lester Vasquez; Luis
Barragan, by and through his Guardian ad Litem Michaela Ruiz; Damien Barragan,
by and through his Guardian ad Litem Michaela Ruiz; Gustavo Barragan, by and
through his Guardian ad Litem Michaela Ruiz; and Levon Barragan, by and through
his Guardian ad Litem Michaela Ruiz (collectively “Plaintiffs”), allege that
they entered into a contract by which Plaintiffs were to reside at the real
property known as 38300 30th Street East Unit #251 Palmdale, CA, 93550 (the “Premises”)
from May 2021 to present in exchange for rent. Defendant Palmdale Realty
Holdings LLC (“Defendant”) is alleged to be the administrator, owner, part
owner, joint owner, agent, trustee and manager of the Premises. Plaintiffs
present that during their residency at the Premises, and while Defendant owned
and operated it, the Premises was generally unsafe, unsanitary, unhealthy,
uninhabitable, untenable, in a serious state of disrepair, and in gross
violation of building, health and safety laws which caused Plaintiffs symptoms
of mold inhalation, breathing issues, restlessness, insomnia, anxiety, stress,
rashes, etc. Plaintiffs allege that they notified Defendant’s agent(s), but
despite notification, Defendant’s agents fauled to make repairs and/or took as
long as they wished to make repairs and made inadequate repairs. Further,
Plaintiffs present that they were discriminated based on their race, national
origin and/or color as Defendant’s agents began a pattern of harassing the
Plaintiffs including threat of eviction including using Plaintiffs’ right to
withhold rent due to the Defendant’s failure to fix the Property as basis to
terminate the tenancy.
On June 07, 2023, Plaintiffs
filed their Complaint, alleging seven causes of action for: (1) Breach of
Warranty of Habitability; (2) Negligence; (3) Nuisance; (4) Breach of Quiet
Enjoyment; (5) Intentional Infliction of Emotional Distress (“IIED”); (6) Anti-Harassment
Statute (Cal. Civ. Code § 1940.2); and (7) Violation of the Unruh Civil Rights
Acts (Cal. Civ. Code § 51).
On July 18, 2023, Defendant was
placed in default for failure to answer the Complaint.
On July 24, 2023, Defendant
attempted to file an Answer. The Answer was rejected as Defendant was in
default.
On August 08, 2023, Defendant
filed this Motion to Set Aside Entry of Default.
On August 11, 2023, Plaintiffs
filed their Opposition.
On August 14, 2023, Defendant
filed an amended Declaration of defense counsel, Napoleon G. Tercero, which
included the rejected Answer.
On August 14, 2023, Plaintiffs
filed an Objection to the amended declaration.
On September 12, 2023, Defendant
filed its Reply.
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Legal Standard
Plaintiffs’ Objection to
Defendant’s Amended Declaration: OVERRULED. It is patent that defense
counsel attempted to correct the failure to include the responsive pleading
within a reasonable time as the amended declaration was filed within six days
of the moving papers. Further, the rejected Answer is filed with the Court and
available to all parties. Failure to consider this amended declaration, which
includes the rejected pleading to adhere to Cal. Code Civ. Proc. § 473(b) would
only result in undue delay of this action. (See analysis, infra.) The
Court will not deny the motion on these grounds. Further, consideration of the
rejected pleadings within the amended declaration will not prejudice
Plaintiffs, see infra.
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.)¿¿
¿¿
Additionally, the California
Supreme Court has held the following:¿¿¿
¿¿
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.]¿¿¿
¿¿
(Elston¿v. City of Turlock¿(1985)
38 Cal.3d 227, 233-34.)¿¿
¿¿
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
presents that the Court has wide discretion to set aside an entry of judgment
upon a showing of good cause, that this is particularly true where a party
seeks relief within six months of the entry of default, and Defendant has moved
quickly by filing this Motion to Set Aside Entry of Default five days after
learning that the Answer was rejected and 20 days after the entry of default.
Defendant highlights that the law favors resolution of disputes on the merits,
so “only ‘very slight evidence will be required to justify a court in setting
aside the default.’ ” (Motion 5:11-12 [citing Fasuyi v. Permatex, Inc.
(2008) 167 Cal.App.4th 681, 696].) Defendant also presents that Plaintiff’s
counsel was aware of defense counsel and failed to advise defense counsel that
default was about to be taken in violation of ethical obligations as set by
case precedent. (Id. at 5:22-28, 29:1-19 [citing various California case
precedent].) Defendant emphasizes that no prejudice will result to Plaintiff as
the case was filed recently on June 11, 2023 and is only in its beginning
stages.
Plaintiffs argue that Defendant
has failed to attach a copy of the response, answer, or other pleading proposed
to be filed as required by Cal. Code Civ. Proc. § 473(b) and that Defendant
and/or its counsel has failed to demonstrate mistake, inadvertence, surprise,
or neglect. Plaintiffs argue that they will be prejudiced as they have
demonstrated (1) Defendant’s intentional and reckless conduct (i.e., failure to
act after the lawsuit) will affect the default judgment already taken, and (2)
Defendant has no defense to this action. Alternatively, Plaintiffs request
attorney fees and costs pursuant to Cal. Code Civ. Proc. § 473(b) and (c)(1)
should the Court grant relief from default.
Defendant, in Reply, emphasizes
that (1) Defense counsel has clearly established that a mistake was made in
calendaring the date the responsive pleading was due in his declaration; (2)
there is no prejudice to Plaintiffs to allow the Answer included in the Amended
Declaration as it is the typical answer filed by this firm and counsels have
had and will continue to have cases with each other; and (3) Plaintiff’s
counsel had an ethical obligation to warn defense counsel that he was going to
take a default.
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.)
Here, based on the statute and
case precedent, the mandatory provision applies as this is an application for
relief from default made within six months and is accompanied by defense
counsel’s sworn affidavit attesting to his or her mistake or inadvertence
(i.e., mis-calendaring of responsive pleading deadline). (See Decl. Napoleon G.
Tercero ¶ 3.)
Cal. Code Civ. Proc. § 473(c)
provides:
(1) Whenever the
court grants relief from a default, default judgment, or dismissal based on any
of the provisions of this section, the court may do any of the following:
(A) Impose a
penalty of no greater than one thousand dollars ($1,000) upon an offending
attorney or party.
(B) Direct that an
offending attorney pay an amount no greater than one thousand dollars ($1,000)
to the State Bar Client Security Fund.
(C) Grant other
relief as is appropriate.
(2) However, where
the court grants relief from a default or default judgment pursuant to this
section based upon the affidavit of the defaulting party’s attorney attesting
to the attorney’s mistake, inadvertence, surprise, or neglect, the relief shall
not be made conditional upon the attorney’s payment of compensatory legal fees
or costs or monetary penalties imposed by the court or upon compliance with
other sanctions ordered by the court.
Relief is not conditioned upon
monetary sanctions. The Court does not believe sanctions are appropriate. In
regards to failure to notice the taking of default, Plaintiffs’ counsel,
Christian Oronsaye (“Oronsaye”), no argument was presented in the Opposition.
Case precedent emphasizes that the practice of law is a profession that
requires those who practice it to “carry a concomitantly greater responsibility
than businesspeople” and states clearly: “The State Bar Civility Guidelines
deplore the conduct of an attorney who races opposing counsel to the courthouse
to enter a default before a responsive pleading can be filed. (Fasuyi v.
Permatex, Inc. (2008) 167 Cal.App.4th 681, 702 [84 Cal. Rptr. 3d 351] (Fasuyi),
quoting Cal. State Bar, California Attorney Guidelines of Civility and
Professionalism (2007) § 15.) Accordingly, it is now well acknowledged that an
attorney has an ethical obligation to warn opposing counsel that the attorney
is about to take an adversary's default. (Fasuyi, supra, at pp.
701–702.).” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127135.) The email
thread evidences that no notice was given to Defendant. (See Opp. Exh. 1.)
Further, the email thread evidences that defense counsel attempted to work with
Oronsaye to reach a stipulation to set aside the default and Oronsaye
conditioned such a stipulation upon the payment of $1,000.00, citing Cal. Code
Civ. Proc. § 431(c)(1). The Court re-emphasizes that Cal. Code Civ. Proc. §
431(c)(2) states in plain language that relief from default due to an attorney’s
mistake, inadvertence, surprise, or neglect cannot be conditioned upon monetary
penalties. Additionally, such penalties are to be imposed by the court and not
Plaintiff’s counsel.
Accordingly, the Motion to Set
Aside Entry of Default is GRANTED.
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Conclusion
Defendant Palmdale Realty
Holdings LLC’s Motion to Set Aside Entry of Default is GRANTED.