Judge: Upinder S. Kalra, Case: 22STCV09228, Date: 2024-03-20 Tentative Ruling

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Case Number: 22STCV09228    Hearing Date: March 20, 2024    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   March 20, 2024                                              

CASE NAME:           Cal 26 Property Group, LLC v. Kambiz Tehrani

CASE NO.:                22STCV09228

MOTION TO SET ASIDE/VACATE DEFAULT JUDGMENT [AT TRIAL] PURSUANT TO CCP § 473(b)

MOVING PARTY:  Defendant Kambiz Tehrani

RESPONDING PARTY(S): None as of March 13, 2024

REQUESTED RELIEF:

1.      An Order setting aside or vacating the default judgment [at trial] taken on January 10, 2024.

TENTATIVE RULING:

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

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On March 16, 2022, Plaintiff Cal26 Property Group, LLC (Plaintiff) filed a Complaint against Defendant Kambiz Barzi Tehrani (Defendant) with causes of action for: (1) Intentional Tort (Conversion), and (2) General Negligence. According to the Complaint, Defendants used a locksmith to break into Plaintiff’s premises and steal cash from an ATM.

On May 26, 2022, Defendant filed an Answer.

On July 28, 2023, the court held a Post-Mediation Status Conference. At that hearing, pursuant to oral stipulation, the court set a Final Status Conference for December 13, 2023 and Trial for January 8, 2024.

On December 13, 2023, the court held a Final Status Conference. Defendant did not appear.

On January 8, 2024, the matter came on for trial. Defendant did not appear. The matter proceeded as an uncontested trial.

On January 9, 2024, the second day of trial was held.

On January 10, 2024, the court entered judgment after court trial after Defendant did not appear at trial.

On February 13, 2024, Defendant filed the instant motion to set aside/vacate default judgment. Plaintiff’s opposition was due on of before March 7, 2024. As of March 13, 2024, there is no opposition on filed with the court.

On February 20, 2024, Plaintiff filed a memorandum of costs. Defendant has not filed a motion to tax costs.

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. 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).)¿¿ 

¿ 

The court has broad discretion to vacate the entry of default, default judgment or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure and within the set time limits. Pursuant to CCP section 473(b), a motion to set aside/vacate cannot be brought more than 6 months after the entry of default and must be made within a “reasonable time.”¿ 

¿ 

CCP section 473(b) provides that when an application for relief is made no more than six months after entry of dismissal and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, the court shall set aside a dismissal entered against the attorney’s client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. (Code Civ. Proc., § 473(b).) “The 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.”¿ 

¿ 

Where an “attorney¿affidavit of fault” is filed, there is no requirement that the¿attorney's¿mistake, inadvertence, or neglect be excusable. Relief¿must¿be granted even where the default or dismissal resulted from¿inexcusable¿neglect by defendant's¿attorney. (Robert E. Weil, et al., California Practice Guide: Civil Procedure Before Trial ¶ 5:495 (2018).)¿ 

ANALYSIS:

Defendant contends that the court must set aside the default judgment because Defendant’s counsel mistakenly calendared trial and Defendant’s motion is timely. Plaintiff has not filed an opposition.

CCP § 473(b) provides relief for defaults, default judgments, and dismissals. It does not provide relief for judgment after trial on the merits. (Shayan v. Spine Care & Orthopedic Physicians (2020) 44 Cal.App.5th 167.) In Shayan, the parties moving to set aside judgment had actual notice of the trial date and failed to appear. (Id. at p. 169.) The court proceeded with trial, heard evidence, and rendered judgment. (Ibid.) The Court of Appeals agreed with the trial court that 473(b) did not provide the relief sought by the moving parties. (Id. at p. 170.)

Shayan is particularly instructive for the case here. First, Defendant had actual knowledge of the trial date on July 28, 2023. Defendant failed to appear at trial and the court proceeded to hear evidence and render a judgment. Defendant seeks relief under 473(b), however, Shayan instructs that 473(b) does not apply to this situation. Defendant has not provided other authority allowing the relief sought.

Accordingly, the court DENIES Defendant’s motion to set aside/vacate default judgment.

CONCLUSION:

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

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

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             March 20, 2024                       __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court