Judge Thomas Falls, Case KC069491 2023-01-17 Tentative Ruling

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Plaintiff alleges that he purchased the real property located at 4847 Slancroft Avenue in Baldwin Park (“subject property”) from George “Frank” Alvarez (“Alvarez”) in 2005 and thereafter made mortgage payments to him. Alvarez allegedly sold the subject property in 2017 to Oseguera Investments Inc. The complaint, filed 7/27/17, asserts causes of action against Defendant Alvarez for:

On August 5, 2022, Plaintiff dismissed Juan Sanchez; Oseguera Investments, Inc.; Steven Carmona; Laikin Realty Corp.; MC-025 KC069491 All Persons Unknown, Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiffs' Title, or Any Cloud On Plaintiffs' Title Thereto; and Does 1 through 20.

On September 19, 2022, George Alvarez filed a ‘DEFENDANT’S RESPONSE TO NEW CHANGE IN PLAINTIFFS’ COMPLAINT BECAUSE OF RECENT DISMISSALS AND; INSUFFICIENT EVIDENCE AS TO THE NEW COMPLAINT; NEW CLAIMS RAISED IN PLAINTIFFS’ “CASE SUMMARY.”

On October 27, 2022, the court denied Plaintiff’s application for default judgment with prejudice.

On November 30, 2022, the plaintiff filed a response to tentative ruling on order to show cause re: default judgment and a supporting declaration.

On December 2, 2022, the defendant filed an opposition to plaintiff’s 2^nd application for default judgment as well as a notice of Defendant’s nonappearance for the hearing set on December 7, 2022.

Defendant brings forth the instant motion pursuant to CCP section 473 subdivisions (b)[1] and (d). (Motion pp. 2-3 of 27 of PDF.)

The discretionary relief provision of CCP § 473(b) allows a court to vacate a prior order upon a showing that the order was entered due to a party’s mistake, inadvertence, surprise, or excusable neglect. Additionally, the motion “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (emphasis added). The terms mistake, inadvertence, surprise, and excusable neglect which warrant relief under Code of Civil Procedure § 473(b) are defined as follows:

Mistake is not a ground for relief under section 473, subdivision (b), when ‘the court finds that the “mistake” is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law ....’ [Citation] Further, ‘[t]he term “surprise,” as used in section 473, refers to “some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” [Citation] Finally, as for inadvertence or neglect, ‘[t]o warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.’ [Citation]

(Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229-230.)

Next, Section 473, subdivision (d) provides that “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” “Inclusion of the word ‘may’ in the language of [the statute] makes it clear that a trial court retains discretion to grant or deny a motion to set aside a void judgment.” (Kremerman v. White (2021) 71 Cal.App.5th 358, 369.) As the court in Kremerman explains, “the trial court has no statutory power . . . to set aside a judgment that is not void. [Citation]. Thus, the reviewing court faces two separate determinations when considering an appeal founded on [statute]: whether the judgment is void and, if so, whether the trial court properly exercised its discretion in setting (or not setting) it aside. [Citation].” (Id) (emphasis added). In determining whether an order is void for purposes of section 473 subdivision (d), a court is to distinguish between orders that are void on the face of the record and orders that “appear valid on the face of the record but are shown to be invalid through consideration of extrinsic evidence.” (Id.) As for the time limitation to bring a forth pursuant to Section 473, subdivision (d), defendants generally have six months from entry of judgment to move to vacate. (§ 473, subd. (b).) However, if the judgment is “void on its face,” then the six-month limit does not apply. (Kremerman, supra, 71 Cal.App.5th at p. 369-370) (emphasis added).

Before engaging in the merits of the case, the court turns to the May 23, 2022 minute order as that hearing gave rise to the instant motion. The Minute Order states the following:

There is no appearance by or for the defendant. The Court notes the defendant failed to appear on February 28, 2022, the matter was set for an Order to Show Cause for the defendant's failure to appear on March 14, 2022. On March 14, 2022 the defendant appeared and indicated he would not be coming to court for the matter set for this date. Counsel for Plaintiff requests the Cross-Complaint filed by George Alvarez be dismissed pursuant to C.C.P. Section 581(b)(5) for failure to appear this date. The Court, pursuant to an oral request made by Plaintiff, orders the Cross-Complaint filed by George "Frank" Alvarez on 03/19/2018 dismissed without prejudice. Further, the Court orders the Answer filed by George "Frank" Alvarez on 7/10/2019 stricken. Plaintiff's counsel to file a Default and Default Judgment. On the Court's own motion, the Jury Trial scheduled for 05/23/2022 is vacated.

Here, the court finds that its order striking Defendant’s answer to render the order void for the following reasons.

First, CCP section 581 subdivision (d) was inapplicable to the set of facts. The statute provides the following:

Except as otherwise provided in subdivision (e), the court shall dismiss the complaint, or any cause of action asserted in it, in its entirety or as to any defendant, with prejudice, when upon the trial and before the final submission of the case, the plaintiff abandons it.

However, it was not Plaintiff who abandoned the case for failing to appear at the trial, but rather the Defendant. Therefore, the court relied upon misplaced authority in striking Defendant’s answer.

Second, there is not a binding case or provision of the Civil Code of Civil Procedure “which would authorize a trial court to enter default against the party defendant whose answer is on file, and this whether the defendant does or does not appear at the trial. In case the defendant fails to appear, the plaintiff's sole remedy is to move the court to proceed with the trial and introduce whatever testimony there may be to sustain the plaintiff's cause of action.” (Warden v. Lamb (1929) 98 Cal.App.737, 741) (emphasis added). Additionally, Section 585—which governs ‘judgment upon failure to answer’—"does not authorize the entry of any default in cases where an answer is on file, whether the defendant does or does not appear at the time the action is called for hearing.” (Id., see also Wilson v. Goldman (1969) 274 Cal.App.2d 573, 577.)

Third, since Wilson, the legislature has expanded the law pertaining to default, which now specifically allows an answer to be stricken and a default entered as a sanction for the defendant's extreme misuse of the discovery process. (§ 2023, subdivision (b)(4); see, e.g., Greenup v. Rodman (1986) 42 Cal.3d 822. Here, however, that provision has no application to the situation where defendant simply fails to appear at trial. Even if the default here could otherwise be properly characterized as a “sanction,” analogous to the discovery sanctions, it could not be sustained. Section 2023 specifically requires notice to the affected party and an opportunity to be heard before imposition of any sanction. (§ 2023, subdivisions (b) and (c).)

To the extent that Plaintiffs argue that Heidary is inapplicable because the case “did not analyze whether the judgment was void or voidable,” lack of such an analysis is inconsequential because the case itself stated that “[w]here a defendant has filed an answer, neither the clerk nor the court has the power to enter a default based upon the defendant’s failure to appear at trial, and a default entered after the answer has been filed is void.” (Opp. p. 10.)

Lastly, to the extent that Plaintiffs argue Lee v. An (2008) 168 Cal.App.4th 558 is binding on this court, the court finds the facts of the case unrelated. In Lee, the trial court struck a defendant’s answer and entered her default without notice for her failure to appear for the case management conference wherein the “[t]he form notice warned that failure to file a case management statement or to appear and participate in the case management conference could result in the imposition of sanctions, including dismissal of the case, striking of the answer, or the payment of money. (Id. at pp. 561-562.) The defendant moved for relief under CCP section 473 (d), asserting that “the court violated her right to due process in striking her answer and entering her default because she did not receive notice that her failure to appear at the status conference could result in terminating sanctions.” (Id. at p. 562.) In reaching its holding that the judgment in the case “was not void, but voidable, and thus not subject to being set aside beyond the six-month time limit,” the court stated that “when a statute authorizes a prescribed procedure and the court acts contrary to the authority conferred, the court exceeds its jurisdiction” such that “[e]rrors which are merely in excess of jurisdiction” would result in “voidable, not void” default and default judgment. (Id. 562-566) (emphasis added). There, the court stated that trial court's authority to impose sanctions on a party for failure to comply with its local rules derived from CCP section 575.2. (Id. at 564.) Here, however, there was no statutory or local rule that would allow for the court to have struck Defendant’s answer for his failure to participate in the trial. Said differently, absent authority to even exceed, Lee has no bearing on the instant facts.

Accordingly, the order’s entry of default against Defendant was facially defective. And when an order is “void on the face,” there is no time limit for the court to set aside default and default judgment.

Therefore, the default entered on May 31, 2022, and the default judgment entered on December 9, 2022 are both set aside.[3]

The Court accepts full responsibility for the missteps in handling this case. Plaintiff is blameless and the Court apologies to all parties for its errors. Based thereon, Defendant’s motion is granted. The court has tentatively scheduled trial for January 20. 2023 at 8:30 a.m.

[1] Though not specified, Defendant does not appear to move for mandatory relief because the mandatory relief provision applies to an attorney’s mistake, inadvertence, surprise, or neglect. Here, however, Defendant is pro per. Therefore, without an attorney, the mandatory relief provision of CCP section 473 (b) does not apply such that the court will rely on the discretionary relief provision of the statute.

[2] Though Defendant bases his motion on 473 (b), Defendant does not appear to be arguing that he made a mistake such that discretionary relief is appropriate. Therefore, the court will focus on 473 subdivision (d) as the crux of Defendant’s argument is that default judgment incorrectly entered because “the amount of damages claimed in the complaint are contradicted by Plaintiffs’ evidence attached to the complaint rendering Plaintiffs’ claims insufficient to support a default judgment and, the default judgment is then void or voidable” and the court’s entry of default and default judgment are void.

[3] See also Defendant’s Motion for a thorough discussion on this issue, supported by abundant legal authority. (Motion pp. 11-14.) Plaintiffs do not address the Wilson case.