Judge Theresa M. Traber, Case Number: 23STCV27202, Date: 2024-02-29 Tentative Ruling

Judge: Theresa M. Traber, Case: 23STCV27202, Date: 2024-02-29 Tentative Ruling

Case Number: 23STCV27202 Hearing Date: February 29, 2024 Dept: 47

23STCV27202Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: February 29, 2024 TRIAL DATE: NOT SET

CASE: Scot Jacoby v. Craig Davis, et al.

CASE NO.: 23STCV27202

MOTION TO SET ASIDE DEFAULT

MOVING PARTY: Defendants Craig Davis and Erica Fenwick

RESPONDING PARTY(S): No response on eCourt as of 2/26/24

CASE HISTORY:

· 11/06/23: Complaint filed.

· 02/06/24: Default judgment entered.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an unlawful detainer action for nonpayment of rent.

Defendants move to set aside the default entered against them.

TENTATIVE RULING:

Defendants’ Motion to Set Aside Default and Default Judgment is GRANTED.

The Motion to Quash Service of Summons originally filed February 2, 2024 is deemed filed this date.

The Court specially sets a Hearing on the Motion to Quash Service of Summons for Tuesday, March 27, 2024, at 9:00 AM. Plaintiff’s opposition and Defendants’ reply papers shall be served pursuant to code.

DISCUSSION:

Defendants move to set aside the default entered against them under the discretionary relief provision of Code of Civil Procedure section 473(b).

The discretionary relief provision of section 473(b) states:

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.

(Code Civ. Proc. § 473(b).)

On February 13, 2024, Defendants applied for ex parte relief to stay execution and shorten time for the hearing on this motion. The Court granted the stay of execution, conditioned on the delivery of $5,000 to Plaintiff’s counsel’s office, payable to Plaintiff, by way of cashier check or electronic funds transfer, by no later than 4:00 PM on February 16. (February 14, 2024 Minute Order.) The Court, on its own motion, struck the Motion to Quash filed February 2, 2024 as improperly filed, and deemed the motion as Defendants’ proposed pleading. (Id.) Plaintiff’s counsel filed a declaration on February 22 that Defendants complied with the conditions set forth in the Court’s order. (Declaration of Jason Stillman filed February 22, 2024.) All conditions having been satisfied; the Court turns to the merits of Defendants’ motion.

Defendants move to set aside the default on the grounds that their failure to timely respond to the Complaint was the result of inadvertence or excusable neglect. Specifically, Defendants state that they provided an incorrect zip code in their initial filing papers, causing Defendants not to receive notice of Court orders or clerical actions. (Declaration of Craig Davis ISO Mot. p.1:7-9.) Defendants state that they also inadvertently omitted the second page of their fee waiver applications, leading to their rejection. (Id. p.1:10-16.) Consequently, Defendants’ subsequent filings, including a Motion to Quash filed December 26, 2023, were rejected for failure to pay fees in the absence of a fee waiver, without actual notice to Defendants. (Id. p.1:17-2:1.) Default judgment was entered on February 6, 2024, and this motion followed exactly one week later.

Defendants have also provided a proposed pleading in the form of their Motion to Quash Service of Summons originally filed February 2, 2024 which challenges the mode of service of the Summons and Complaint. As that motion is not presently at issue and has not been fully briefed by the parties, the Court declines to address its merits here.

Defendants have provided a valid reason for failing to oppose this action due to their mistake, inadvertence, or excusable neglect in that their errors in preparing their initial filings precluded fair notice of the status of the case against them. The Court therefore finds good cause to set aside the default and default judgment and permit filing of the proposed motion to quash.

CONCLUSION:

Accordingly, Defendants’ Motion to Set Aside Default and Default Judgment is GRANTED.

The Motion to Quash Service of Summons originally filed February 2, 2024 is deemed filed this date.

Moving Party/ies to give notice.

IT IS SO ORDERED.

Dated: \February 29, 2024 ___________________________________

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.