Judge Theresa M. Traber, Case 22STCV08372 2022-08-19 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV08372, Date: 2022-08-19 Tentative Ruling

Case Number: 22STCV08372 Hearing Date: August 19, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: August 19, 2022 TRIAL DATE: NOT SET

CASE: Guadalupe Guzman v. Francisco Flores

CASE NO.: 22STCV08372

MOTION TO SET ASIDE/VACATE DEFAULT

MOVING PARTY: Defendant Francisco Flores

RESPONDING PARTY(S): Plaintiff Guadalupe Guzman

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a breach of contract actions that was filed on March 8, 2022. Plaintiff hired Defendant to care for and race horses, and alleges that Defendant failed to do so properly.

Defendant moves to set aside the default entered against him on May 18, 2022.

TENTATIVE RULING:

Defendant’s Motion to Set Aside the default is GRANTED on the condition that Defendant serve and file the answer by August 26, 2022.

Plaintiff’s request for sanctions is DENIED.

DISCUSSION:

Defendant moves under Code of Civil Procedure section 473 to set aside a default entered on May 18, 2022.

Defendant’s Requests for Judicial Notice

Defendant requests that the Court take judicial notice of the following documents in this case: (1) the Complaint in this case, (2) the Proof of Service of Summons filed on May 16, 2022, (3) the Court’s order on Defendant’s fee waiver; (4) a May 16, 2022 request for entry of default; (5) a May 17, 2022 request for entry of default; (6) a May 18, 2022 request for entry of default, and (7) Defendant’s May 31, 2022 Notice of Change of Address. Defendant’s requests are GRANTED pursuant to Evidence Code section 452(d) (court records.)

Plaintiff’s Evidentiary Objections

Plaintiff objects to Defendant’s Exhibits A, C, and D attached to the motion as assuming facts not in evidence, lacking personal knowledge, inadmissible hearsay, lacking foundation, and, in the case of Exhibit D, lack of relevance.

Plaintiff’s objection to Exhibit A is SUSTAINED for lack of foundation. As the Court does not rely on Exhibits C or D in reaching its ruling, the Court declines to rule on Plaintiff’s objections.

Timing

Pursuant to Code of Civil Procedure section 473(b), a motion to set aside/vacate cannot be brought more than six months after the entry of the order at issue and must be made within a “reasonable time.” The six-month time limit is jurisdictional. (Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 970.) Six months is defined as half a year, or 182 days, for the purposes of this section. (Davis v. Thayer (1980) 113 Cal.App.3d 892, 901-04.)

Defendant’s motion to set aside was filed on June 28, 2022. Default was entered against Defendant on May 18, 2022. There is no question that the motion is within the six-month time limit proscribed by section 473(b).

Lack of Declaration

Defendant has not offered any supporting declaration with his moving papers under penalty of perjury under the laws of the State of California, as is required to constitute admissible evidence. However, section 473(b) explicitly states that “no affidavit or declaration of merits shall be required of the moving party.” The Court therefore will consider the motion on its merits.

Timing

Defendant moves to set aside the default under Code of Civil Procedure section 473(b) for mistake, inadvertence, surprise, and excusable neglect.

Code of Civil Procedure section 473(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…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…was taken.

Section 473(b) also authorizes the Court to grant relief from default using the Court’s equitable powers. (Aldrich v. San Fernando Valley Lumber Co., Inc. (1985) 170 Cal.3d 725, 736.)

In default cases, there is a three-part test for relief that asks whether there is or was: (1) a meritorious case; (2) a valid reason for not defending the original case; and (3) diligence used in requesting to set aside default once discovered. (Rappleyea v. Campbell (1994) 8 Cal.4th 975; see also Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1144.) The Court also considers possible prejudice that could result from default being set aside. (Munoz v. Lopez (1969) 275 Cal.App.2d 178, 183.) Absent a showing of prejudice to the Plaintiff, only very slight evidence is required to justify setting aside a default. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696.) Section 473 “should be liberally applied and the power freely exercised to carry out the policy in favor of trial on the merits.' (5 Witkin, Cal. Procedure (2d 3d. 1971) Attack on Judgment in Trial Court, § 165, p. 3735; Taliaferro v. Taliaferro (1963) 217 Cal.App.2d 216, 220.) There is a strong policy behind granting relief if the moving party brings the motion for relief within the statutory time. (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1071.)

As a threshold matter, Plaintiff has not made any showing that granting relief will prejudice Plaintiff. Therefore, Defendant needs only offer very slight evidence to justify relief.

1. Meritorious Case

Defendant has not included a proposed answer with his moving papers. However, Defendant contends that the Complaint filed in this case is identical to the Complaint filed in a previous case involving the same parties, Guzman v. Flores, LASC Case No. 21STCV35995. (See Complaint; RJN Exh. A.) Defendant states that the answer that would have been filed in this case would be identical to the answer that was filed in the previous case. (Defendant’s Motion Exh. A.) Plaintiff objects to the consideration of this answer. However, the Court will exercise its discretion to take judicial notice of the corresponding filing in the previous case, and construe that answer as a proposed answer. The proposed answer raises multiple affirmative defenses which, if proven, would allow Defendant to prevail in this action. Plaintiff does not contend otherwise. Defendant has therefore established that there is a meritorious case

2. Valid Reason for Not Defending Original Case

Defendant does not identify which of the four bases authorized by section 473(b) under which he seeks relief. Defendant argues that he was operating under the belief that the Complaint in this matter was actually the Complaint in the previous case, that he was unaware that a new Complaint had been filed because he had not received it because he had moved, or, alternatively, that he had requested an extension from Plaintiff to respond to the Complaint, which was granted.

Defendant’s first argument may be properly construed as an argument for relief for mistake or excusable neglect “Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the same circumstances.” (Alderman v. Jacobs (1954) 128 Cal.App.2d 273, 276.) Defendant argues that he was mistaken as to the existence of a new Complaint because the Complaint in this matter is identical to the Complaint in the previous matter. A review of the Complaint in the 2021 filing shows that, aside from the case number, that Complaint is identical to the Complaint in this case, right down to the typographical errors. It is therefore extremely plausible that a self-represented and reasonably prudent litigant might be confused by the two nearly-identical complaints. However, as Plaintiff observes in opposition, Defendant has undercut his own argument, as, on May 9, 2022, Defendant filed a request to waive court fees in this case. Defendant offers no explanation for why he filed a request to waive court fees in a matter that he purportedly did not believe existed. The Court therefore finds that Defendant has failed to show mistake or excusable neglect on this basis.

Defendant’s second argument is that the failure to answer the Complaint was because he was unaware of the Complaint due to having relocated and changed his address. To the extent that this is an argument that Defendant was not properly served with the Complaint, this argument is properly brought under Code of Civil Procedure section 473(d) under the Court’s power to set aside a void judgment. However, Defendant makes no reference to section 473(d) in his moving papers and does not elaborate on this argument further. Nevertheless, as Plaintiff did not object to this argument in opposition, the Court will examine it on the merits.

The court may, on motion of either party after notice to the other party, set aside any void judgment or order. (Code Civ. Proc. § 473(d).) The Court has the inherent power to set aside a void judgment whether or not it is void on its face. (Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1122.) When an application to vacate and set aside a judgment that is not void on its face, but void in fact, is made within a reasonable time after its rendition and is based on a sufficient showing, it is within the power of the court, and its duty, to set it aside (Smith v. Bratman (1917) 174 Cal. 518, 520.) A judgment or order is void on its face when its invalidity appears from an examination of the judgment roll. (People v. Davis (1904) 143 Cal. 673, 676; Carrasco v. Craft (1985) 164 Cal. App. 3d 796, 808.)

Code of Civil Procedure section 415.20(b) allows a summons to be served by leaving a copy of the summons and complaint at the person’s . . . usual place of business . . . in the presence of . . . a person apparently in charge of his or her office, place of business, or usual mailing address . . . at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail . . .” This form of service is permitted only when a copy of the summons cannot with reasonable diligence be personally delivered to the person to be served. (Code Civ. Proc. § 451.20(b).)

On May 18, 2022, Plaintiff filed a Proof of Service by substituted service stating that Defendant was served by substituted service with the Summons and Complaint on April 5, 2022. However, the Declaration of Diligence included in the Proof of Service states that, on March 29, 2022, the Plaintiff’s process server spoke with an occupant at 736 E. Sacramento Street in Altadena, who told the process server that Defendant had recently moved out and his location was unknown. (Proof of Service p. 2.) The Proof of Service then states that substituted service was effected at the same address. (Id. p.1.) Plaintiff offered no additional evidence that any further effort was expended to confirm Defendant’s address. In addition, on May 31, 2022, Defendant filed a Notice of Change of Address dated May 17, 2022 with a proof of service by mail dated May 18, 2022, stating that Plaintiff no longer resided at the 736 E. Sacramento Street address. The Court finds that service was not properly made on Defendant of the Complaint in this action, and the default entered on May 18, 2022 was therefore void in fact and must be set aside.

As the Court has found that an independent basis for relief exists, the Court need not examine Defendant’s final argument. Nevertheless, the Court notes that Defendant’s argument that an extension was requested and granted on May 17, 2022 is not supported by any evidence. Although Defendant states that he requested an extension of time to respond to the answer on May 17, 2022, Defendant offers no evidence that this request was ever granted. Even if the Court were to consider Exhibit C, to which Plaintiff has objected, no evidence is offered showing that any communication from Plaintiff’s counsel was ever received. Defendant therefore has not shown that this would be a proper basis to set aside the default.

3. Diligence in Requesting to Set Aside Default

Defendant does not initially address the issue of diligence in requesting to set aside a default. However, Plaintiff also does not argue that Defendant did not exercise adequate diligence in bringing this motion.

There is an unofficial standard that, to bring a motion to set aside a default, a motion should be filed within three months of the party’s discovery of the default. (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 529; Huh v. Wang (2007), 158 Cal.App.4th 1406, 1421-22.) Here, the default was entered on May 18, 2022, and the motion was filed on June 28, 2022. The Court finds that Defendant has therefore exercised reasonable diligence in requesting to set aside the default.

The Court finds that Defendant, having offered a meritorious case in his defense, having shown evidence of a valid reason for not defending the case originally, and having shown evidence of diligence upon discovery of the default, is entitled to relief from default under Code of Civil Procedure section 473.

Sanctions

Plaintiff requests that the Court impose sanctions on Defendant in the amount of $1,000, pursuant to Code of Civil Procedure section 473(c)(1)(A). As the Court has granted relief due to Plaintiff’s improper service of the Complaint, the Court finds that such sanction would be inappropriate. The Court therefore declines to award the requested sanctions.

CONCLUSION:

For the reasons explained above, Defendant’s Motion to Set Aside the default is GRANTED on the condition that Defendant serve and file the answer by August 26, 2022.

Plaintiff’s request for sanctions is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: August 19, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.