Judge: Teresa A. Beaudet, Case: 23STCV26416, Date: 2024-10-01 Tentative Ruling

Case Number: 23STCV26416    Hearing Date: October 1, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Nawal Bengholam (“Plaintiff”) filed this action on October 27, 2023, against Defendants 1346 Stanley, LLC (“1346 Stanley”), Stanley 1, LLC, and Charles & Cynthia Eberly Inc. The Complaint alleges causes of action for (1) breach of contract/covenant of quiet enjoyment/warranty of habitability, (2) tortious breach of the implied warranty of habitability, (3) negligence, (4) violation of unfair business practices, (5) intentional infliction of emotional distress, and (6) wrongful eviction.

            On January 18, 2024, default was entered against 1346 Stanley.

            On February 23, 2024, 1346 Stanley filed a Cross-Complaint against Plaintiff. The Cross-Complaint alleges causes of action for (1) implied indemnity, (2) express indemnity,

(3) declaratory relief, (4) contribution, (5) negligence, and (6) breach of contract.

1346 Stanley now moves for an order setting aside the default entered against it. Plaintiff opposes.

Discussion

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

 “[B]ecause 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.” ((Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 [negative treatment on other grounds].) Where the party in default moves promptly to seek relief, and no prejudice to the opposing party will result from setting aside the default, “very slight evidence will be required to justify a court in setting aside the default.” (Ibid.)

Code of Civil Procedure section 473, subdivision (b) also contains a mandatory provision: “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.”

In support of the motion, 1346 Stanley submits the declaration of its counsel, who states that “[o]n May 7, 2024, counsel for Defendants [sic][1] became aware that they were in default, and that their declaration had not extended the deadline by 30 days as anticipated…” (Derflinger Decl., ¶ 4.) The Court notes that 1346 Stanley’s counsel does not appear to specify what “declaration” he is referring to. 1346 Stanley’s counsel further states that “[o]n that same day, counsel for Defendants [sic] requested counsel for Plaintiffs [sic] agree to stipulate to set aside the default. Counsel for Plaintiff did not respond.” (Derflinger Decl., ¶ 4.)

1346 Stanley’s counsel states that “[d]efault was entered against Defendants [sic] as a result of their attorney’s mistake, inadvertence, and/or neglect – i.e., my mistake, inadvertence and neglect. The entry of default against Defendants [sic] was not due to any conduct or neglect of Defendants [sic] themselves. The error was solely attributable to Defendants’ [sic] counsel.” (Derflinger Decl., ¶ 5.)

1346 Stanley indicates that it is “moving for mandatory relief from entry of default under C.C.P. § 473(b) on the grounds of their [sic] attorney’s mistake, inadvertence, surprise, or neglect.” (Mot. at p. 2:8-9, emphasis omitted.)

In the opposition, Plaintiff asserts that 1346 Stanley’s motion is untimely, as it was not filed within six months of the entry of default. However, as discussed, 1346 Stanley seeks relief under the mandatory provision of Code of Civil Procedure section 473, subdivision (b), which provides that “[n]otwithstanding 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.” (Emphasis added.) No judgment has yet been entered in this matter. Accordingly, the Court does not find that Plaintiff has shown that the instant motion is untimely.

Plaintiff also argues that “STANLEY’s counsel contends that they filed a declaration regarding an extension of time to meet and confer on the pleadings which is the reason they were late in the filing of their responsive pleading. No such declaration was attached, filed with the court, or sent to Plaintiff’s counsel likely because it does not exist. Absent this, they have provided no excuse for not timely responding to the complaint or not timely filing this motion.” (Opp’n at p. 3:4-8.) However, 1346 Stanley’s counsel states in his declaration under penalty of perjury that “[d]efault was entered against Defendants [sic] as a result of their [sic] attorney’s mistake, inadvertence, and/or neglect – i.e., my mistake, inadvertence and neglect.” (Derflinger Decl., ¶ 5.) The Court notes that under the mandatory provision of Code of Civil Procedure section 473, subdivision (b), the attorney’s neglect does not need to be excusable. ((Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 225.)

Based on the foregoing, the Court grants 1346 Stanley’s motion to set aside the default under the mandatory provision of Code of Civil Procedure section 473, subdivision (b).

Lastly, the Court notes that under Code of Civil Procedure section 473, subdivision (b), “[t]he 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.” Here, however, Plaintiff has not provided evidence of any legal fees or costs.

Conclusion

Based on the foregoing, 1346 Stanley’s motion is granted. The default entered against 1346 Stanley on January 18, 2024 is ordered set aside. 

1346 Stanley is ordered to file its answer to the Complaint within 10 days of the date of this Order.¿   

1346 Stanley is ordered to give notice of this Order.

DATED:  October 1, 2024    

                        ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court