Judge: Stephen P. Pfahler, Case: 21CHCV00095, Date: 2023-08-31 Tentative Ruling

Case Number: 21CHCV00095    Hearing Date: August 31, 2023    Dept: F49

Dept. F-49

Date: 8-31-23

Case #21CHCV00095

VACATE DISMISSAL

MOVING PARTY: Plaintiff/Cross-Defendant, Pacific Grove Association

RESPONDING PARTY: Defendants/Cross-Complainants, Henry and Veronica Martinez

RELIEF REQUESTED

Motion to Set Aside Dismissal

SUMMARY OF ACTION

Plaintiff Pacific Grove Association (Pacific Grove) governs a condominium association in Santa Clarita. Defendants Henry and Veronica Martinez own a unit within the association. Pacific Grove alleges Defendants installed a nonconforming storage shed on their property in violation of the Covenants Codes and Restrictions, and refuse to remove it.

On February 9, 2021, Pacific Grove filed its complaint for Breach of Written Contract, Violation of Restrictions, Nuisance, and Declaratory Relief. On March 30, 2021, the clerk entered a default. On September 15, 2021, the court granted Defendants’ motion to set aside the default. On October 8, 2021, Defendants answered. On October 12, 2021, Defendants filed a cross-complaint against Pacific Grove Association for Violation of the Fair Housing Act, Negligence, and Breach of Governing Documents.

On May 10, 2022, following a second consecutive non-appearance by Pacific Grove, the court ordered the complaint dismissed, the dismissal of defendants Henry and Veronica Martinez, and an entry of default on the cross-complaint. On June 29, 2022, the court granted the ex parte motion of Pacific Grove to vacate the dismissal, reinstate the complaint, and vacate the default on the cross-complaint.

On September 21, 2022, the court sustained the unopposed demurrer to the cross-complaint. On November 1, 2022, the court granted the ex parte motion to dismiss the cross-complaint following the failure to serve a first amended cross-complaint.

On January 27, 2023, when Pacific Grove failed to appear for the Case Management Conference the court dismissed the entire action.

RULING: Granted.

Pacific Grove brings its second motion to vacate the dismissal of the action following further non-appearances for court hearings. Pacific Grove once again moves to set aside the default on grounds of counsel mistake, inadvertence, excusable neglect by counsel. Defendants in opposition characterize the basis of relief as “discretionary,” and challenge the showing of fault in the declaration of counsel, including deflection of responsibility, and a challenge to the diligence in filing the motion. The court electronic filing system shows no reply on file at the time of the tentative ruling publication cutoff.

Code of Civil Procedure section 473 subdivision (b) provides in 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.”

“The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed. (Citation.) The six-month period runs from entry of default, not entry of judgment.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) The case was dismissed on January 27, 2023. The motion was filed on May 24, 2023, which is within 180 days of the dismissal entry date.

“[A] trial court is obligated to set aside a default, default judgment, or dismissal if the motion for mandatory relief (1) is filed within six months of the entry of judgment, (2) ‘is in proper form,’ (3) is accompanied by the attorney affidavit of fault, and (4) demonstrates that the default or dismissal was in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.’” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 443.)

The declaration of attorney David Swedelson represents the continued Case Management Conference was inadvertently omitted from the office calendar. Counsel represents “staffing issues” at the firm as a contributing factor. [Declaration of David Swedelson.]

The motion is granted. Defendants are ordered to answer the complaint within 10 days of the order. The court orders payment of $500 by counsel for Pacific Grove to the State Bar Client Security Fund given the second filed motion for relief from dismissal by Pacific Grove due to the fault of counsel. (Code Civ. Proc., § 473, subd. (c)(1)(B).)

The court will set a Case Management Conference. 

Moving party to give notice.