Judge: Upinder S. Kalra, Case: 20STCV33742, Date: 2023-01-30 Tentative Ruling

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Case Number: 20STCV33742    Hearing Date: January 30, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   January 30, 2023                                

CASE NAME:           Abraham Melena, et al. v. Partnership Advisors Limited Partnership, et al.  

CASE NO.:                20STCV33742

MOTION TO SET ASIDE/VACATE DEFAULT JUDGMENT

MOVING PARTY: Plaintiffs Abraham Melena et al.

RESPONDING PARTY(S): None as of January 25, 2023.

REQUESTED RELIEF:

1.      An order setting aside/vacating the default judgment is GRANTED.

TENTATIVE RULING:

1.      Motion to Set Aside/Vacate Default Judgment is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On September 3, 2020, Plaintiffs Abraham Melena, Rosa Cruz, Ashley Michelle Luis, a minor by and through her Guardian Ad Litem, Rosa Cruz, Sheryl Jasmin Luis, a minor by and through her Guardian Ad Litem, Rosa Cruz, and Lily Melena Cruz, a minor by and through her Guardian Ad Litem, Rosa Cruz (“Plaintiffs”) filed a complaint against Defendants Partnership Advisors Limited Partnership, Amusement Industry Inc., and CCC & R Texas LLC (“Defendants.”) The complaint alleged six causes of action including, but not limited to, breaches of warranty of habitability, negligence, and private nuisance. Plaintiffs allege that while residing in the apartment building owned and managed by Defendants, the property suffered from various substandard conditions, such as mold, lack of hot water, and insect and pest infestations. Defendants failed to repair or correct these substandard conditions.

On October 26, 2020, Defendants Partnership Advisors Limited Partnership and CCC & R Texas LLC filed an Answer.

On November 13, 2020, Defendant Amusement Industry Inc., filed an Answer.

On October 4, 2022, an offer to compromise was submitted as to Rosa Cruz, Sheryl Jasmin Lui, and Ashley Michelle Luis.

The current Motion to Set Aside/Vacate Judgment was filed on October 19, 2022. On January 17, 2023, a Notice of Non-Opposition was filed by Defendant Amusement Industry, Inc.

LEGAL STANDARD:

“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…  [The application] shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”  CCP § 473(b). 

Although a trial court has discretion to vacate the entry of a default or subsequent judgment, this discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.” Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495. “The defendant must … demonstrate a satisfactory excuse for not responding to the original action in a timely manner.” Id. at 504. Moving parties have the initial burden to prove excusable neglect by a preponderance of competent evidence. Kendall v. Barker (1988) 197 Cal.App.3d 619, 624.   

CCP § 473(d) provides in relevant part that “[t]he court may, upon motion of the injured party…set aside any void judgment or order.” CCP § 473(d) 

CCP section 473.5 permits the Court to set aside a default and default judgment when the service of a summons has not resulted in actual notice to a party in time to defend the action. ¿CCP section 473.5 requires the motion to be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by the party's avoidance of service or inexcusable neglect. ¿The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of the following: 

1) two years after entry of a default judgment against him or her; or  

2) 180 days after service on him or her of a written notice that the default or default judgment has been entered. ¿ 

ANALYSIS:

            Plaintiffs moves to have the judgment set aside due to mistake, inadvertence, or excusable neglect.  No attorney affidavit of fault has been filed so the motion is reviewed under the discretionary grounds for relief.

            998 offers were prepared totaling $42,999.95, with $4,999.99 to each of the minor plaintiffs and the remainder to the rest of the Plaintiffs. Plaintiff’s counsel instructed their legal assistant, Ms. Anderson, to prepare these offers. However, there was an error with the total, with the total being served as $23,999.97 instead of the $42,999.95 total.

            Plaintiffs’ rely on Zamora, which the Court finds appropriate. There, the Supreme Court determined that certain types of mistakes, such as writing “against” instead of “in favor of,” are clerical and can be done by anyone, and thus are excusable. It further stated that “appellate courts have routinely affirmed orders vacating judgments based on analogous mistakes made by an attorney or his or her staff.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 259.) Here, the Court finds that the mistake was similar; a reasonable person could have calculated the total offer incorrectly, especially with multiple parties. Moreover, “[T]he purpose of the mandatory relief provision under section 473, subdivision (b) is achieved by focusing on who is to blame, not why. Indeed, in many cases, the reasons for the attorney's mistake, inadvertence, surprise, or neglect will be irrelevant; that is because, as noted above, the mandatory relief provision entitles a party to relief even when his or her attorney's error is inexcusable.” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 439). This was an error by an attorney for not reviewing a 998 offer after it was prepared and before it was presented to opposing parties. In addition, this motion was promptly, within a few weeks of discovering the error. Accordingly, the Court finds that Plaintiff has satisfied the requirements of excusable neglect.

            Motion to Set Aside/Vacate Judgment is GRANTED.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

            Motion to Set Aside/Vacate Default is GRANTED.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             January 30, 2023                     ________________________________                                                                                                                    Upinder S. Kalra

                                                                                    Judge of the Superior Court