Judge Upinder S. Kalra, Case Number: 24STCV14503, Date: 2025-03-13 Tentative Ruling

1. If you wish to submit on the tentative ruling, please email the clerk at SMCdept51@lacourt.org (and “cc” all other parties in the same email) and notify all other parties in advance that you will not be appearing at the hearing. Include the word "SUBMISSION" in all caps in the subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you do not have access to the internet, you may call the clerk at (213) 633-0351.

If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear and argue the motion, and the Court may decide not to adopt the tentative ruling. Please note that the tentative ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question which are not authorized by statute or Rule of Court.

2. For any motion where no parties submit to the tentative ruling in advance, and no parties appear at the motion hearing, the Court may elect to either adopt the tentative ruling or take the motion off calendar, in its discretion.

3. DO NOT USE THE ABOVE EMAIL FOR ANY PURPOSE OTHER THAN TO SUBMIT TO A TENTATIVE RULING. The Court will not read or respond to emails sent to this address for any other purpose.

2. Defendant to file its responsive pleading within 14 days’ notice of this order.

On June 11, 2024, Plaintiff Ramona Gonzalez (Plaintiff) filed a Verified Complaint for partition by sale of real property against Defendant Rino Centanaro (Defendant). According to the Complaint, this action concerns real property located at 3061 E. 4th St., Los Angeles, CA 90063 (the Property) that Plaintiff and Defendants hold equally as tenants in common. Plaintiff alleges that Defendant is the tenant-in-possession and refuses to voluntarily sell the Property or buy out Plaintiff’s share.

On October 7, 2024, Plaintiff obtained an Order for Publication of the Verified Complaint.

On October 8, 2024, Defendant filed a request for continuance of the case management conference and a request to waive court fees.

Oon October 29, 2024, Plaintiff filed Proof of Service through substituted service that was effectuated on October 17, 2024.

Oon November 18, 2024, Plaintiff applied for Clerk’s Entry of Default which was rejected for being premature.

On December 3, 2024, Plaintiff requested entry of default for a second time. against Defendant. That same date, the clerk entered default against Defendant.

On December 11, 2024, Defendant filed the instant motion to set aside/vacate default. On February 27, 2025, Plaintiff filed an opposition. Any reply was due on or before March 6, 2025. On March 11, 2025, Defendant filed a Reply.

“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.)¿¿

Defendant contends relief from default is proper because he had been trying to find counsel, did so, and Plaintiff could have served the Complaint at the Property. Plaintiff argues that Defendant has not adequately demonstrated mistake warranting set aside.

“What is a reasonable time in any case depends upon the circumstances of that particular case” and “whether a party has acted diligently is a factual question for the trial court.” (Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1145 [internal citations omitted].) CCP § 473(b) “is construed liberally to further the policy of adjudicating legal controversies on the merits.” (Id. at p. 1146.) The question is “whether a reasonably prudent person under the same or similar circumstances would have made the same error.” (Ibid.) Because the law strongly favors trial and disposition on the merits, any doubts in allowing discretionary relief from adverse orders for mistake, inadvertence, surprise, or excusable neglect must be resolved in favor of the party seeking relief from default. (Huh v. Wang (2007) 158 Cal.App.4th 1406.)¿

Here, discretionary relief is warranted. First, Defendant timely sought to set aside default. Defendant moved to set aside default eight days after entry of default which is well within six months. Second, Defendant provides evidence of mistake.[1] Notably, he declares that he relied upon free legal advice to get a fee waiver and to request a continuance of the case management conference and that he was “waiting to be served with the court documents.”[2] (Centanaro Decl. ¶¶ 12, 13.) Plaintiff corroborates this by providing an email where Defendant implies his understanding as needing proper service before needing to do anything. (Graves Decl., Exhibit M.) Taken together, it is clear that Defendant misunderstood what constitutes effective service. Additionally, Defendant declares he had been searching for an attorney and hired one by December 6, 2024. (Centanaro Decl. ¶¶ 15, 16.) Finally, there is no indication that Plaintiff will be prejudiced should the court set aside the default.[3]

Accordingly, the court GRANTS Defendant’s motion to set aside/vacate the default entered on December 3, 2024.

2. Defendant to file its responsive pleading within 14 days’ notice of this order.

[1] The court notes Plaintiff’s zealous argument that Defendant’s declaration does not establish mistake.

[2] Indeed, Defendant did file a fee waiver request and a request to continue the case management conference.

[3]While the court recognizes the frustration that Plaintiff has experienced to timely resolve this partition issue with a former partner, Plaintiff’s counsel has ethical obligation to avoid racing to the courthouse to obtain default. Counsel should take a moment to review Lasalle v. Vogel (2019) 36 Cal. App. 5th 127, 135 (Lasalle), where the court spoke at length about the practice of racing to the courthouse to obtain default.

“ ‘The quiet speed of plaintiffs' attorney in seeking a default judgment without the knowledge of defendants' counsel is not to be commended.’ [citation]. . .The State Bar Civility Guidelines deplore the conduct of an attorney who races opposing counsel to the courthouse to enter a default before a responsive pleading can be filed. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 702,quoting section 15 of the California Attorney Guidelines of Civility and Professionalism (2007) (Fasuy).) Accordingly, it is now well-acknowledged that an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary's default. (Id. at pp. 701-702.)”

“In that regard we heartily endorse the related admonition found in The Rutter Group practice guide, and we note the authors' emphasis on reasonable time: “Practice Pointer: If you're representing plaintiff, and have had any contact with a lawyer representing defendant, don't even attempt to get a default entered without first giving such lawyer written notice of your intent to request entry of default, and a reasonable time within which defendant's pleading must be filed to prevent your doing so.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) § 5:73, p. 5-19 (rev. #1, 2008) as quoted in Fasuyi, supra, 167 Cal.App.4th at p. 702, 84 Cal.Rptr.3d 351.)” While Defendant was unrepresented at the time of entry of default, a quick review of the Register of Actions would have revealed that Defendant was attempting to participate in the proceeding.