Judge: Stephen P. Pfahler, Case: 23CHUD00435, Date: 2023-08-09 Tentative Ruling

Case Number: 23CHUD00435    Hearing Date: August 9, 2023    Dept: F49

SET ASIDE DEFAULT

MOVING PARTY: Defendant, Sherley Contreras

RESPONDING PARTY: Plaintiff, Zelzah, LLC

RELIEF REQUESTED

Motion to Set Aside Default

SUMMARY OF ACTION

On March 29, 2023, plaintiff Zelzah, LLC filed a complaint against defendant Sherley Contreras for unlawful detainer. The complaint itself alleges outstanding rent of $3,050. On April 10, 2023, Plaintiff filed a peremptory challenge, and the case was reassigned to Department 49.

On May 9, 2023, Contreras in pro per answered the complaint. The request for a fee waiver was denied, and a payment of $225 was due. No payment was made, and the answer was later struck due to non-payment.

The clerk entered a default against Contreras on April 26, 2023. The clerk entered default judgment for possession only on June 28, 2022. A writ of execution was issued on June 28, 2023, as well.

RULING: Granted.

Defendant Sherley Contreras moves to set aside the defaults on grounds of attorney mistake, inadvertence, and/or excusable neglect. The court electronic filing system shows no opposition or reply 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 clerk entered default on August 25, and the subject motion was filed on September 19, 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 court first notes that the identified address in the complaint identifies the subject property as 10339 Zelzah Ave., #5, Northridge, while the motion identifies Contreras’ address as 45074 N. 10^th St., #701, Lancaster. The court assumes the Lancaster address constitutes a typographical error, and proceeds on the assumption of the Northridge address.

The motion relies on a claim of attorney mistake, inadvertence, and/or excusable neglect, but the argument instead challenges the propriety of the denied fee waiver hearing. Upon submission of the application, the court set a hearing, but Contreras admittedly failed to attend the hearing, due to a represented illness. The non-appearance led to a denial of the application. Contreras at all relevant times appeared in pro per notwithstanding help from Neighborhood Legal Service of Los Angeles County (NLSLA). Thus, regardless of any assistance provided by NLSLA, Contreras still appeared in pro per. The court therefore finds no basis for the automatic relief provisions requested. The court therefore considers the discretionary standard for relief. (Esther B. v. City of Los Angeles (2008) 158 Cal.App.4th 1093, 1100.)

The court also rejects the challenges regarding the basis for scheduling the fee waiver hearing. Nothing in the motion seeks reconsideration of said denied application, and the court declines to otherwise sua sponte reconsider its own basis for setting the hearing and denying the application upon the failure to appear (see Gov. Code, § 68633, subd. (c)(2), 68634, subd. (e)(4-5), (g); also see Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 436).

The court accepts the declaration of Contreras however regarding both diagnosed anxiety and depression, and physical illness on the hearing date, as the basis for missing the fee waiver hearing. “Excusable neglect, which may be the result of disability (Citation), is ‘that neglect which might have been the act of a reasonably prudent person under the same circumstances.’” (County of Alameda v. Superior Court (1987) 196 Cal.App.3d 619, 625 [internal quotation marks omitted].) The court is also mindful of a default unlawful judgment drawing heightened scrutiny on appellate review. (Shapell Socal Rental Properties, LLC v. Chico's FAS, Inc. (2022) 85 Cal.App.5th 198, 213.)

Thus, the court finds the circumstances, equities, and timing of the unopposed motion supports a finding for relief from the default. The motion is therefore granted. Contreras is ordered to file a new answer and pay the fee within 5 days of this order. Failure to pay the fee a second time, including any insufficiency of funds, will result in the striking of the second filed answer, and a new default.

Defendant to give notice.