Judge: Stephen P. Pfahler, Case: 23CHCV00766, Date: 2023-09-18 Tentative Ruling

Case Number: 23CHCV00766    Hearing Date: September 18, 2023    Dept: F49

Dept. F-49

Date: 9-18-23 (specially set via ex parte on 8-11-23)

Case # 23CHCV00766

Trial Date: Not Set

MOTION TO VACATE DEFAULT JUDGMENT

MOVING PARTY: Defendant, Amy Renteria, pro per

RESPONDING PARTY: Plaintiff, Shannaz Nermiarnian

RELIEF REQUESTED

Motion to Vacate the Default Judgment for Unlawful Detainer

SUMMARY OF ACTION

On November 23, 2021, Plaintiff Colonial Park, LLC filed a complaint for Unlawful Detainer against Defendant Nimeh Khlaif dba Nick’s Auto. The clerk entered a default on January 25, 2022, then a default judgment for possession on February 7, 2022.

On March 15, 2023, Plaintiff filed a complaint for unlawful detainer. The complaint shows a 3-Day Notice to Pay Rent or Quit dated March 3, 2023, with a March 5, 2023, declaration of service indicating service by posting and mailing. Defendant, in pro per, answered the complaint on April 3, 2023.

On May 11, 2023, a default was entered as to Anthony Renteria and all unknown occupants.

On June 13, 2023, the court struck the answer of Amy Renteria following the second consecutive non-appearance for the case management conference.. On June 30, 2023, a default was entered. Default judgment including $40,709.87 in rent, fees, and costs, followed on July 14, 2023. A writ of execution was issued of July 19, 2023.

RULING: Granted.

Defendant Amy Renteria, in pro per, moves for relief on the default judgment on grounds of lack of actual notice of the two case management conferences, thereby leading to the non-appearance, striking of the answer, and default judgment. Defendant also cites to the mistake, inadvertence, excusable neglect standard for, and finally on grounds of equitable relief. Plaintiff in opposition maintains service was proper, and Defendant presents no valid basis for a finding of mistake, inadvertence or excusable neglect. The lease expired with outstanding rent remaining due and owing. The court electronic filing system shows no reply at the time of the tentative ruling publication cutoff.

Code of Civil Procedure section 473.5 provides in part:

“(a) When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.”

The default was entered as a result of a struck answer rather than lack of service of the summons and complaint. Relief under the subject section only involves a default judgment without any appearance by a defendant. Even if court considered the section, The court finds no defects in the proofs of service whereby Plaintiff’s counsel was ordered to provide notice continuing the Case Management Conference from March 6 to May 15, 2023, and second continuance from May 15, to June 13, 2023. Defendant acknowledges receipt of the notices, but expresses confusion over the change of dates. Other than citation to the section and declaration, the court lacks any other evidence in support of the claimed improper service or lack of notice as a basis for the default judgment. The court therefore finds no basis for relief under the lack of notice statute.

The court instead considers relief under mistake, inadvertence and/or excusable neglect. 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 clerk entered default on February 2, and the subject motion was filed on February 14, 2022, which is within 180 days of the default entry dates. The court considers this timely motion under the statutory relief provisions. (Ibid.)

“[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 lack of an actual attorney affidavit bars a finding for mandatory relief on the motion. (See Hu v. Fang (2002) 104 Cal.App.4th 61, 64.)

The court therefore considers the discretionary standard for relief based on the declaration of Defendant. Plaintiff challenges the sufficiency of the declaration.

The court finds the declaration vague in terms of accounting for the “lack of notice.” The court accepts the representation of confusion with the language of the orders requiring an appearance and dates, but given Defendant knew to appear for the fee waiver hearing, the court finds the selective understanding of the appearance requirement lacking support. While nothing in the motion indicates a disregard for the proceeding, the court finds the declaration lacking in support simply based on “confusion” with the obligation to appear. (See Scognamillo v. Herrick (2003) 106 Cal.App.4th 1139, 1149 disapproved of by Lewis v. Ukran (2019) 36 Cal.App.5th 886; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.)

Defendant finally pleads for equitable relief under Code of Civil Procedure section 128. “Every court shall have the power to do all of the following: (8) To amend and control its process and orders so as to make them conform to law and justice. …” (Code Civ. Proc., § 128, subdivision (a)(8).) The court finds no support from this section, but in its discretion considers equitable relief.

“The court may relieve a tenant against a forfeiture of a lease or rental agreement, whether written or oral, and whether or not the tenancy has terminated, and restore him or her to his or her former estate or tenancy, in case of hardship, as provided in Section 1174. The court has the discretion to relieve any person against forfeiture on its own motion.

“An application for relief against forfeiture may be made at any time prior to restoration of the premises to the landlord. The application may be made by a tenant or subtenant, or a mortgagee of the term, or any person interested in the continuance of the term. It must be made upon petition, setting forth the facts upon which the relief is sought, and be verified by the applicant. … In no case shall the application or motion be granted except on condition that full payment of rent due, or full performance of conditions or covenants stipulated, so far as the same is practicable, be made.”

Code Civ. Proc., § 1179

The motion lacks any reference to the sections or demonstration of hardship under Code of Civil Procedure section 1174. Defendant only maintains a willingness to pay the outstanding rent, but for Plaintiff’s refusal to communicate. Plaintiff also maintains the eviction is otherwise “illegal.”

The court declines to consider facts and unsupported argument not presented to the court, and instead, in its discretion, orders a stay of execution on the writ of possession contingent on full payment of the outstanding rent. The default judgment and writ of possession are therefore vacated.

Defendant is given 5 days from the date of this order to pay the sought after rent in full as presented in the judgment--$25,190. Plaintiff is also ordered to pay any rent accumulated from the date of the judgment to the next rent due payment period. The rent shall be the same monthly rate unless and pending further consideration of the court regarding a change in the amount due.

The court only stays execution of the judgment and therefore effectively vacates the default judgment. The answer is restored and the court will set a trial date following the lapse of the compliance period.

The subject order in no way prevents the initiation of a new unlawful detainer default judgment based on breach of the rent should Plaintiff fail to tender the outstanding rent and any continuing rent obligations. Defendant is responsible for presenting proof of payment to the court in case of any challenge by Plaintiff regarding non-payment. If Defendant can submit proof of a refusal by Plaintiff to accept the outstanding rent, the court will consider the circumstances. Failure to otherwise present proof of payment or appear for any hearing will constitute a presumptive inability to pay the outstanding rent. The court will again strike the answer, thereby allowing reentry of the default, with subsequent right to seek a default judgment and writ of possession.

Given the unchallenged expiration of the lease terms, the court assumes the existence of a month month-to-month rental agreement. The parties are therefore restored to the month-to-month rental agreement, pending full payment of all outstanding rent.

Plaintiffs may not rely on this existing judgment for seeking possession of the premises. Plaintiff will need to seek a new judgment.

The court will set an OSC re: Payment of Rent and a Trial Date.

Defendant to give notice.