Judge: Virginia Keeny, Case: 22VECV01318, Date: 2023-02-14 Tentative Ruling

Case Number: 22VECV01318    Hearing Date: February 14, 2023    Dept: W

CHARLOTTE FLAHERTY v. KLASS ENTERPRISES, LP

plaintiff’s motion for relief from default

Date of Hearing:        February 14, 2023                             Trial Date:       None set.

Department:              W                                                        Case No.:        22VECV01318

Moving Party:            Plaintiff Charlotte Flaherty

Responding Party:     Defendant Klass Enterprises, LP

BACKGROUND

On September 8, 2022, Plaintiff Charlotte Flaherty filed a complaint against Defendant Klass Enterprises, LP asserting causes of action for malicious prosecution, retaliation, and violation of the Los Angeles COVID Moratorium. Plaintiff alleges they were a tenant of Defendant but when Plaintiff complained to Defendant of their upstairs neighbors, Defendant filed an unlawful detainer action against Plaintiff in violation of the City of Los Angeles COVID moratorium and the Los Angeles County COVID moratorium.

On September 21, 2022, the instant matter was related to Defendant’s unlawful detainer against Plaintiff.

[Tentative] Ruling

Plaintiff’s Motion for Relief from Default is GRANTED.

DISCUSSION

Plaintiff moves the court for an order vacating the court’s ruling on Defendant’s special motion to strike on the grounds she was not properly served the motion or the notice of non-opposition. Defendant opposes the motion.   

Code of Civil Procedure section 473(b) provides two means for relief – one discretionary and one mandatory. The discretionary relief provision permits the court to, “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.” Alternatively, “the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.”

Plaintiff argues her failure to respond to the special motion to strike was due to surprise. Plaintiff contends she never received the anti-SLAPP motion and had she known about the motion, she would have timely opposed the motion and appeared at the hearing. Plaintiff also provides her opposition to the anti-SLAPP motion with her motion to set aside.

In opposition, Defendant argues Plaintiff was properly served by mail and provides proofs of service showing Plaintiff was mailed the special motion to strike and notice of non-opposition on November 9, 2022 and December 6, 2022, respectively. Defendant also provides the Case Management Conference Statement filed and served on October 18, 2022, which informed Plaintiff that Defendant would be filing a special motion to strike. Plaintiff never claimed she did not receive the Case Management Conference Statement. As a result, Plaintiff was at least on notice of the special motion to strike. Defendant further argues Plaintiff’s opposition to the anti-SLAPP motion lacks merit.

The court finds Plaintiff’s declaration supports granting discretionary relief. “Section 473, subdivision (b) is construed liberally to further the policy of adjudicating legal controversies on the merits. [Citation.] Thus, ‘ “‘[t]hose affidavits favoring the contention of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom....’” ’ [Citation.]” (Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1146.) In Younessi, the court found the plaintiff failed to establish mandatory or discretionary relief when plaintiff’s counsel failed to timely file an amended complaint in response to an order sustaining demurrers to the original complaint with leave to amend. The court found the plaintiff failed to timely show they sought relief from the dismissal and failed to provide evidence supporting a finding of excusable mistake, inadvertence or neglect. First, the plaintiff’s counsel did not file the motion to vacate the dismissal until seven weeks after discovering the order against the plaintiff. Second, plaintiff’s counsel conclusorily claimed his office must have missed the demurrer. Later, however, counsel admitted he learned of the court’s ruling but did not explain how or in what manner he discovered this information. The court finds the facts differ from Younessi.

Here, Plaintiff has attested, under penalty of perjury, she did not receive the special motion to strike or the notice of non-opposition. Plaintiff further attests she did not become aware of the motion or the court’s decision until she received Defendant’s motion for attorney fees. Defendant filed and served the motion for attorney fees on December 22, 2022, and Plaintiff filed the instant motion on January 9, 2023. The court finds Plaintiff acted with diligence by seeking relief within two and a half weeks of discovering the special motion to strike had been granted against her. How Plaintiff received all other papers in this action except for the special motion to strike is perplexing, but given the liberal policy of adjudicating legal controversies on the merits, the court believes Plaintiff has demonstrated mistake, inadvertence, surprise, or excusable neglect. This is unlike the mere inadvertence in Younessi where counsel assumed he had more time to file an amended complaint, contrary to California Rules of Court, rule 3.1320(g). Here, Plaintiff has attested that they did not receive the motion or the notice of non-opposition and once discovering judgment had been entered against her, sought relief from default.

Accordingly, Plaintiff’s motion to set aside is GRANTED. Defendant requests this court allow Defendant 15 days to prepare a reply and set a new hearing date. Defendant’s request is GRANTED.

Defendant further requests this court order Plaintiff to pay Defendant $925.00 in attorney fees in connection with the motion to vacate default within ten days after entry of the order granting Plaintiff’s motion.

“Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following: (A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party. (B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund. (C) Grant other relief as is appropriate.” (CCP §473(b)(c).)