Judge Upinder S. Kalra, Case Number: 23STCV17046, Date: 2024-11-25 Tentative Ruling

CASE NAME: West Sunset Blvd. Properties 2, LLC v. Byte to Bite (California), LLC

2. An Order correcting a clerical error in the April 25, 2024 judgment award amount.

2. Plaintiff to file and serve an amended default judgment package within 21 days of this ruling.

On July 20, 2023, Plaintiff West Sunset Blvd. Properties 2, LLC (Plaintiff) filed an Unlawful Detainer Complaint against Defendant Byte to Bite (California), LLC (Defendant).

On November 8, 2023, Plaintiff filed a First Amended Complaint (FAC). The FAC added additional Defendants Sanford Gendel and Sandro Reinhart.

On January 25, 2024, Plaintiff filed a request for dismissal as to Sandro Reinhardt only.

On January 29, 2024, the court entered default against Defendant Sanford Gendel.

On April 25, 2024, the court entered default judgment against Defendants Byte to Bite and Gendel.

On July 17, 2024, Plaintiff filed the instant motion to set aside the April 25, 2024 Judgment. Oppositions were due on or before November 12, 2024. As of November 20, 2024, the court has not received any oppositions.

“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).)¿

Plaintiff requests the court to set aside the April 25, 2024 Judgment because counsel made a mistake when calculating the damages sought.[1] Plaintiff provides two attorney declarations indicating the mistake by counsel. Defendants did not file oppositions.

Here, relief is warranted. First, Plaintiff filed this motion within six months of the judgment. Second, Plaintiff provides two attorney declarations of fault.

Accordingly, the court GRANTS Plaintiff’s motion to set aside the April 25, 2024 Judgment.

2.Plaintiff to file and serve an amended default judgment package within 21 days of this ruling.

[1] Plaintiff alternatively moves for relief pursuant to CCP § 473(d) which gives the court authority to correct clerical errors. However, that section applies to the court’s clerical errors. Here, the court made no clerical errors – counsel did. As such, this section does not provide the relief Plaintiff seeks.